Law’s Function in De Cive and Leviathan: A Re-Appraisal of the Jurisprudence of Thomas Hobbes

2007] A Re-Appraisal of the Jurisprudence of Thomas Hobbes 231

LAW’S FUNCTION IN DE CIVE AND LEVIATHAN:A RE-APPRAISAL OF THE JURISPRUDENCE OF

THOMAS HOBBES

GARRETT BARDEN* AND TIM MURPHY**

I. INTRODUCTION

William of Occam, the younger contemporary of the thirteenth centurytheologian St Thomas Aquinas, writing of the divine law, and particularly ofthe Ten Commandments, considered that what God commanded was goodbecause God commanded it.1 In his Table Talk (1689), Thomas Hobbes’contemporary, John Selden, in a passage reminiscent of Occam, asks “Howshould I know I ought not to steal, I ought not to commit Adultery, unless somebody had told me so?” He answers: “Surely, ’tis because I have been told so!”2

The position known as the “divine right of kings,” despite the reference to the“divine,” is a clear expression of the secular version of this association betweenright – or “good” – and power.3

* Emeritus Professor of Philosophy, University College Cork.

** Associate Professor of Law, University of Akureyri, Iceland.

1. The Ten Commandments or Ten Words, said in the Torah to have been given toMoses by Yahweh, were for several centuries so much the focus of Christianphilosophical and theological reflection on morality that the terms “the moral law”and “the Ten Commandments” became almost interchangeable. Slightly differentversions of these precepts are given in Shemot (Exodus): 20:1-21 and in Devarim(Deuteronomy): 5:1-22.

2. John Selden, Table Talk (Dent, 1956), at 73. His choice of forbidden actions –stealing and adultery – is from the Ten Commandments, where, in both versions,they appear in the reverse order. The passage reads in full:

I cannot fancy to myself what the Law of Nature means, but the Law ofGod. How should I know I ought not to steal, I ought not to commit Adultery,unless some body had told me so? Surely ’tis because I have been told so!’Tis not because I think I ought not do them, nor because you think I oughtnot; if so, our minds might change: whence then comes the restraint? Froma higher Power; nothing else can bind …. It must be a superior, even GodAlmighty ….

3. King James put it thus:

232 Dublin University Law Journal [Vol 29

St Thomas opposed this position, holding that some actions were “naturallygood,” by which he meant that in certain situations the right action could bediscovered by intelligent, reasonable and responsible moral enquiry.4 St Thomas,too, was concerned to understand the Ten Commandments, often using themas exemplary cases, and considered that those commandments having to dowith ordering our relations with one another in society were commanded becausethey were good.5

One interpretation of Thomas Hobbes’ account of law is that, in theOccamian tradition, he thought actions to be good or evil, right or wrong,according as they were commanded or forbidden. This interpretation of Hobbesis the dominant theme in the jurisprudential interpretations of his theory, whichgenerally focus on his notion of a social contract “[justifying] authoritariangovernment” to which citizens must give “absolute and unconditionalobedience.”6 Since Hobbes wrote in time of civil war, and the immediatepurpose of his great theoretical account of human civil society was to support

As the King is overlord of the whole land, so is he master over every personthat inhabiteth the same, having power over the life and death of every oneof them. For although a just prince will not take the life of any of his subjectswithout a clear law, yet the same lawes whereby he taketh them are made byhimself or his predecessors, and so the power flows always from himself.

James VI of Scotland, I of England, and I of Ireland. Quoted from King James’Workes in Henry Wansbrough OSB, The Story of the Bible (Darton, Longman andTodd, 2006), at 91, where Dom Wansbrough discusses the Authorized King Jamestranslation of the Bible (1611) and the King’s insistence on the divine right of kings.

4. See Garrett Barden, “Of Natural Law and Reasonable Action” Milltown Studies 56(2005) 71; and Tim Murphy, “St Thomas and the Natural Law Tradition” in TimMurphy ed, Western Jurisprudence (Thomson Round Hall, 2004).

5. St Thomas’s discussion in the Summa Contra Gentiles (henceforth SCG) of thecommandments that order humans between themselves is very explicitly an effortto show that what is divinely commanded is what is reasonable: SCG, III, chapter128. On the other hand, St Thomas considered that the commandments that have todo with our relations, not to one another but to Yahweh, enjoin actions that are, atleast in their detail, good because commanded. See Summa Theolgiae (henceforthST), II-II, Q 57, art 3, and SCG, III, chapter 129. So, for example, to keep theSabbath holy is good because commanded. This commandment remains withinJudaism, but not within the New Law as Christians think of their religion, whereSunday replaces the Sabbath as the day to be kept holy. For the SCG we havetranslated the passages quoted in the body of the article from the Leonine Edition(1961). We have also used the French translation by Vincent Aubin (Flammarion,1999). The quotations from the ST are from the edition published in the Bibliotecade Autores Christianos (1963). Again, translations are ours.

6. M D A Freeman, Lloyd’s Introduction to Jurisprudence (6th ed, Sweet and Maxwell,1994), at 102.


security, anything that tended to undermine the security of the Sovereign wasto him anathema. His “plausible model of absolute government” is thus said toinvolve an “imperative” conception of law in which there is no place for “anotion like iniquity [since that notion] belongs to a plane of moral order whichlaw, as such, does not inhabit.”7 No law can be unjust within Hobbes’ scheme,it is typically asserted, “since it is only with the establishment of law that onecan distinguish between right and wrong;” his achievement was therefore “ineffectively rejecting rationalism with his replacement of reason by will as thefoundation of political authority,” and he “did not believe that the authority oflaw rested on the fact that it promoted a desirable objective or that it reflecteda profound truth. Rather the authority of law rested solely on the fact that it waspromulgated by the authorized ruler.”8 According to these perspectives, thefunction of law in Hobbes’ theory is to express and enforce the will of theSovereign, whatever that may happen to be.

There are many passages in De Cive (1642) and Leviathan (1651) – theworks by Hobbes on which this article will focus9 – that support strongly theidea that Hobbes thought of the Sovereign’s command as defining the good.Consider, for example, the following passages from Leviathan:

[W]hatsoever is the object of any mans Appetite or Desire; that is it,which he for his part calleth Good … For these words, Good, Evill andContemptible, are ever used with relation to the Person that useth them:There being nothing simply and absolutely so; nor any common Rule ofGood and Evill, to be taken from the nature of the objects themselves;but from the Person of the man (where there is no Common-wealth;) or,(in a Common-wealth,) from the Person that representeth it; ….10

COMMAND is, where a man saith, Doe this, or Doe not this, withoutexpecting other reason than the Will of him that sayes it. From this it

7. J M Kelly, A Short History of Western Legal Theory (Clarendon, 1992), at 213-214,237. Kelly describes such a type of government as one exemplified by moderndictatorships for which, “at any rate according to modern western notions about theminimum civil rights of the individual, nothing could be said except that theyprovided a sort of peace, a sort of security, even if an arbitrary police power and theprison camps were its modes”. Ibid, at 214.

8. M Loughlin, Public Law and Political Theory (Clarendon, 1992), at 73, 79, 80.9. Henceforth, referred to as Leviathan and De Cive. In the notes that follow page

references in Leviathan are to the Penguin edition edited by C B Macpherson (1968);the numbers in square brackets refer to the original pagination and are given inMacpherson’s edition. The edition of De Cive used here is that edited with anintroduction by Bernard Gert: Man and Citizen (De Homine and De Cive), (Hackett,1991). Some reference will also be made in this article to this edition of De Homine[1657].

10. Leviathan, at 120 [24].


followeth manifestly, that he that Commandeth, pretendeth thereby hisown benefit: For the reason of his Command is his own Will onely, andthe proper object of every mans Will, is some Goode to himselfe.11

And first it is manifest, that Law in generall, is not Counsell, butCommand; nor a Command of any man to any man; but only of him,whose Command is addressed to one formerly obliged to obey him. Andas for Civill Law, it addeth only the name of the person Commanding,which is Persona Civitatis, the Person of the Common-wealth.12

It is completely reasonable to interpret these passages as expressing a positivisttheory of law in which what is good is defined by what the Sovereign findsgood, and commands. Had Hobbes written only these and similar passages, itwould be impossible to sustain an interpretation of his theory other than as apurely positivist theory.

The argument advanced in this article is neither that Hobbes repudiatedthese propositions, nor that they are peripheral to his thought. They are central,and nowhere does he deny them. Rather, the argument is that there is anunresolved tension in Hobbes that leaves him further from the Occamian,positivist tradition, and nearer to St Thomas, than is commonly assumed. Weshall argue that the positivist stream in Hobbes’ thought does not sit entirelyeasily with Hobbes’ concept of civil society and that in fact his positivism, atits purest, is impure. The focus of the article is on Hobbes but, given ourargument, we shall also make extensive reference to the Summa Contra Gentilesand Summa Theologiae of St Thomas.

We suggest in Part II of the article – which compares the concepts of civilsociety found in the work of Hobbes and St Thomas – that Hobbes’ concept ofcivil society is in many ways close to that of St Thomas. There is a significantdifference between the two concepts – namely, that the natural, pre-civil societyenvisaged in Hobbes’ theory is not a part of St Thomas’ thought – but theidentity remains and is of great significance.

Part III focuses on how Hobbes, having established that civil society orpeaceful order is desired, approaches the questions of what actions lead to suchan order and how these actions are to be discovered. We discuss here Hobbes’fundamental laws of nature – his theorems of reason or “natural laws” – andhow he considered that the content of these was discoverable through intelligentenquiry by, and only by, the objective enquirer. We shall see also that the functionof less fundamental laws, like the function of the fundamental laws, is to maintaincivil society, and that Hobbes’ account of the accord between the laws of natureand the divine law is close to that given by St Thomas, for whom the precepts

11. Ibid, at 303 [131-132].12. Ibid, at 312 [137].


of the Ten Commandments regarding our association with one another aredictates of reason.

In Part IV of the article, we shall see that in tension with this Hobbes heldthat law expressed the will of the Sovereign who necessarily sought his owngood, as he understood it to be, which might or might not coincide with thegood of his subjects, and of civil society. Without the supreme authority, civilsociety will not be maintained; but all laws and the Sovereign himself are withinthat context; thus it is not the Sovereign but civil society which is mostfundamental and so, even at his most positivist, his positivism is impure, forlaw’s function is not in the end to ensure the sovereign’s will but to maintaincivil society. Hobbes is therefore not content to rest in the conclusion that theSovereign may legitimately command whatsoever he will. He may, of course,have the power; but his authority is limited to what he may legitimatelycommand. This is consonant with St Thomas’ position, namely, that what isdiscordant with reason and natural law is not so much law as a corruption oflaw.

II. THE CONCEPT OF CIVIL SOCIETY: HOBBES AND ST THOMAS

In the thirteenth chapter of Leviathan Hobbes describes the natural conditionof mankind. It may be disputed as to whether he thought that humans were everin such a condition, or simply used the description as an imaginary picture of acondition – what we should now call a model, and what Immanuel Kant calledan “idea of reason”13 – to be contrasted with an image of civil society. Weincline to the second interpretation, but it is of no consequence for thisdiscussion:14 what is important is the contrast between civil society and thenatural condition. As well as making that contrast, Hobbes makes another; thatbetween a society at peace, and one in the grip of civil war: “it may be perceivedwhat manner of life there would be, where there were no common Power tofeare; by the manner of life, which men that have formerly lived under a peacefulgovernment, use to degenerate into in a civill Warre.”15 Another, similar contrastmight be between life under a peaceful government and the manner of life intowhich men tend to degenerate in the aftermath of natural, or humanly provoked,disaster with the emergence of widespread looting, and loss of mutual respect.

13. Kant considered it impossible for the original condition to have been a fact andreferred to it as “merely an idea of reason”. “Of the Relationship of Theory toPractice in Political Right” in Kant’s Political Writings, H S Resiss ed, H B Nisbettr (Cambridge University Press, 1991), at 79.

14. Hobbes discusses the matter briefly in Leviathan, at 187 [63] and more fully in thefirst chapter of De Cive.



The use of the word “degenerate” is significant. For Hobbes, the naturalcondition is worse, and is, by those living within it, experienced as worse, thancivil society. He takes it for granted that his readers will share this evaluationof the contrasted conditions. Hobbes does not so much argue that it is better, asshow that it is. That is how he expects the reader to respond to the contrast.There is in the first chapter of Hobbes’ De Cive what might seem to be anargument to support the view that civil society is preferable to the natural state:

the natural state of men, before they entered into society was a mere war,and that not simply, but a war of all men against all men…. But it is easilyjudged how disagreeable a thing it is to the preservation of all mankind,or of each single man, a perpetual war is … [That state is] deprived of allthat pleasure and beauty of life, which peace and society are wont tobring with them. Whosoever, therefore, holds that it had been best tohave continued in that state in which all things were lawful to all men, hecontradicts himself. For every man by natural necessity desires that whichis good for him; nor is there any that esteems a war of all against all,which necessarily adheres to such a state, to be good for him ...16

This is not properly an argument. It is perfectly clear that Hobbes takes it to bean empirical fact, and takes it for a premise in his argument, that no one “esteemsa war of all against all … to be good for him.” The argument is, rather, this:Everyone desires his own good; No one finds the natural state good; Therefore,no one desires the natural state. To hold that it had been best to continue in thenatural state contradicts, not another proposition, but an unavoidable desire; tochoose the natural state over against civil society is to choose against one’sunavoidable desire. A reader who genuinely took the natural state to be betterthan, or as good as, civil society would find Hobbes’ argument deeply puzzling.

In what is undoubtedly the best-known quotation from Hobbes, the naturalcondition is described in Leviathan as one in which “the life of man (is), solitary,poore, nasty, brutish, and short.”17 It is important to notice that the adjective“solitary” does not describe a condition in which humans live isolated fromone another, as if, for example, each one had to fend for himself, alone on hisown island, unimpeded by others. The natural condition is nothing of the kind.Even if it is described as a non-social condition, it is not a condition in whichhumans live alone. They live together, yet not in harmony, in a state of continualwar. In a sense, for Hobbes, humans are naturally and inevitably social beings;but their society is neither naturally nor inevitably civil; that is, it is neithernecessarily nor inevitably peaceful.

16. De Cive, at 118.17. Leviathan, at 186 [62].


The natural condition is the war “of every man against every man.”18 Menfind this hateful, and incline to its opposite, Peace: “The Passions that enclinemen to Peace, are Feare of Death; Desire of such things as are necessary tocommodious living; and a hope by their means to obtain them.”19 Of thesethree passions that incline to peace, one is negative, the fear of death; two arepositive, the desire for what allows a good life, and the hope of being able tolive it. It is possible to hate a condition, to desire to escape from it, and to seekanother condition without having a very clear idea or image of that othercondition. Hobbes, however, does have a clear idea of the desirable condition,and expects his readers to share it. The desirable condition is civil society inwhich humans, for the most part, live in cooperative harmony and “under apeacefull government.”20 Such a situation is the product of social contract borneout of the desire to escape the natural condition.

He calls this the condition of peace, and expects his readers to know, fromtheir own experience, what it is, and to desire it. Why do they desire it? Because,outside it, they live in fear of death in a condition in which “there can be nosecurity to any man … of living out the time, which Nature ordinarily allowethmen to live.”21 The desire for the good life, and hence for the context in whichalone it is possible, is natural; that is, humans are the kind of beings that naturallydesire civil society and, therefore, reasonably choose the means to attain it:“Wherefore to seek peace, where there is any hope of obtaining it … is thedictate of right reason, that is, the law of nature.”22

To seek peace is the reasonable course of action, that is, the dictate of rightreason and – as we shall see in Part III – the essence of the first fundamentallaw of nature, because the achievement of peace is what one desires. Thefourteenth and fifteenth chapters in Leviathan and the second and third chaptersin De Cive set out this law and the other laws of nature that indicate the meansto achieve peace and the conservation of civil society. These laws arefundamental in as much as they are laws “which, being taken away, the Common-wealth faileth, and is utterly destroyed; as a building whose Foundation is utterlydestroyed. And therefore a Fundamentall law is that … without which theCommon-wealth cannot stand ….”23

For Hobbes, civil society is a good to be achieved and maintained. Therefore,it is necessary to know the means to achieve and maintain civil society, and

18. Ibid, at 185 [62]; De Cive, 118.19. Leviathan, at 188 [63].20. Ibid, at 187 [63].21. Ibid, at 190 [64].22. De Cive, at 119.23. Leviathan, at 334 [150]. This recalls Njal’s dictum in the Icelandic saga: Með lögum

skall land byggja og ólögum eyða (“By law is the land built; by lawlessness (unlaw)destroyed”).


reasonable to use these means. Proposed means are good to the extent that theycontribute to the bringing about and the sustaining of civil society, and bad tothe extent that they tend to destroy it. Hobbes is perfectly clear that theappropriate means – the fundamental laws of nature – have a function, and aregood or bad to the extent that they fulfill or fail to fulfill their function. Needlessto say, the more particular or less fundamental laws of civil society – the detailedelements of the criminal law, for example, or of the law of contract – must be inkeeping with the fundamental laws of nature and they share the same basicfunction of sustaining civil society.

For Hobbes, therefore, civil society is good, but it is not good becausecommanded; it is good because it is the social context within which humanscan live well. Indeed, from the perspective adopted in the fourteenth and fifteenthchapters of Leviathan and the second and third chapters of De Cive, civil societyis not commanded at all. Similarly, the Hobbesian perspective is that thefundamental laws of nature are not good because commanded – indeed, fromthe same perspective they are not properly commands – but good because theyfulfill their function of bringing about and sustaining civil society. Humansneeded no one to tell them that the peaceful condition was better than continualwar. There is, then, at the core of Hobbes’ account, a break with the Occamiantradition, according to which acts are good because commanded whether byGod or by “that great LEVIATHAN … that Mortall God.”24 Yet the break isnot clean; as the passages from Leviathan quoted in the Introduction indicate,and as we shall see further in Part IV, the Sovereign’s command is central toHobbes’ thought and thus the influence of the Occamian tradition remains.

St Thomas’ concept of civil society is, perhaps surprisingly, in many respectssimilar to that of Hobbes. In chapters 128 and 129 of the Summa Contra GentilesSt Thomas discusses how man, by the law of God, is ordered relative to hisneighbour; and the theory, to which we have already referred, that some humanacts are right according to nature, and not only according to positive law,including under “positive law” the law of God. The context of his discussion isan account, running from chapter 111 to chapter 163, of how humans aregoverned by God.25 When he writes of the law of God in these chapters, StThomas has in mind principally the Ten Commandments as they are found inboth Exodus and Deuteronomy, and, among them, those rules that govern ourrelations with one another, viz Thou shalt honour they father and thy mother,Thou shalt not kill, Thou shalt not commit adultery, Thou shalt not steal, Thoushalt not bear false witness against thy neighbour, Thou shalt not covet thyneighbour’s wife … nor anything that is his.

24. Leviathan, at 227 [87].25. This is not the context of Hobbes’ discussion in the chapters so far considered; but

that Hobbes does discuss these matters in Leviathan and De Cive should not beoverlooked. See Part III below.


The most significant difference between the concepts of civil society in StThomas and Hobbes is that St Thomas does not use the Hobbesian model of anoriginal condition that men choose to abandon in favour of civil society; butrather he considers that humans originally live together in community. Thatman is a social animal is asserted frequently in these chapters of the SummaContra Gentiles, in the later Summa Theologiae and in the commentaries onAristotle’s Nicomachean Ethics and Politics.26 St Thomas does not say explicitlythat humans have always lived in community: but this, for the very cogentreason that he thinks they cannot live otherwise, is taken for granted, and is, soto speak, the model or context of his discussion. Clearly, then, St Thomas differsfrom Hobbes with respect to the fundamental assertion that man is naturallysocial; in Hobbes’ model, man is indeed naturally “social” but in a condition ofconstant war of each against each. But, as has been shown, man is, for Hobbes,naturally dissatisfied with this condition, and naturally desires its opposite.

Humans-in-community is St Thomas’ model and Hobbes’ construct but,beneath this difference in emphasis, there is an identity that is easy to overlook,and that has been, in fact, overlooked. St Thomas’ commentary on a passage inthe Nicomachean Ethics, where Aristotle discusses friendship, brings thiscommon ground to light. Aristotle asks if the happy man can be happy alone,or if he needs friends: he responds that the latter is the case.27 St Thomas’commentary reads:

And [Aristotle] says that it would be strange, that the happy man shouldbe solitary. For this is contrary to every choice of everyone. For nonewould choose to live always by himself, that is, alone, even if consequentlyhe would have all other goods; for man is naturally a political animal andborn apt to live with others. Because the happy man has those things thatare naturally good for humans, consequently he should have [friends]with whom to live….28

Their perspectives are different, but Aristotle, Aquinas and Hobbes rely on

26. In the set of chapters in the SCG (111-163) the phrase “social animal” appears forthe first time in chapter 117. For the source, see, for example, Aristotle, NicomacheanEthics, I.7.1097b.12 and IX.9.1169b.18; Politics, I.2.1253a.2.

27. “It would be strange to make the happy man solitary. For none would choose to besolitary in order to have all good things; for man is social, and born apt to live withothers….” Aristotle, Nicomachean Ethics, IX.9.1169b.18. The translation given isfrom the Latin used by St Thomas in his commentary.

28. St Thomas here writes that man is a “political animal” rather than a “social animal”because he is here commenting on the Latin translation of Aristotle where the relevantpassage reads: …politicum enim homo, et convivere aptus natus. In Decem LibrosEthicorum Aristotelis ad Nicomachum Expositio (Turin: Marietti, 1934), at 603.


what they take to be a universal fact: no one chooses the solitary life. For allthree, civil society is in some sense, yet not the same sense for each, chosen.

According to Hobbes, men choose civil society rather than the naturalcondition because only in civil society, the foundation of which is peace, canthey enjoy such things as are necessary to commodious living. According to StThomas, men inevitably live in community, and cannot live wholly solitarylives. Even were a choice possible, they would not choose otherwise, becauseoutside community they would not be happy. But only in a community in whichpeace prevails can happiness be achieved; and it is this order that is the objectof choice. So St Thomas accepts that civil society is chosen, although not fromwithin a Hobbesian natural condition. He writes that because it is reasonable tochoose it, it is proper that that it should be commanded: “It is proper, therefore,that, by the divine law, there should be between men, lest they mutually impedeone another, an order of concord, which is peace.”29 Read through a Hobbesianlens, the condition in which they “mutually impede one another” is the naturalcondition, and the “order of concord, which is peace” is civil society.

Within St Thomas’ model, then, that humans live communally is given; theorder of concord or peace is continuously chosen. Since in St Thomas’ modelthey who are to choose civil society already live within it, civil society is notchosen by a founding contract between those living outside it. It is an orderinto which humans are born and that is maintained by those within it actingwell, and is undermined by those within it acting badly. When a person, forexample, tempted to steal, chooses not to steal, he chooses to maintain thepeaceful order; when, tempted to steal, he chooses to steal, he chooses toundermine the peaceful order. The honest man chooses not to steal because heaccepts that what he is tempted to steal belongs to another and he respects theowner’s interest; when honest men and women live together their honest choicescontribute to bringing about and sustaining the peaceful order, which is thuschosen, as it were, obliquely.30

Within Hobbes’ model, the natural condition is given; civil society is chosen.On one, as we think superficial, reading of Hobbes, civil society is chosen oncefor all. Certainly Hobbes thinks of a foundational contract; but beneath this ishidden another, more fruitful reading, based on Hobbes’ insistence on thecentrality of contract: for civil society is constantly open to collapse and somust be constantly chosen. This reading is nearer to St Thomas, for whom, aswe have said, the achievement of the peaceful order is a constant choice.

No doubt the reason why anyone would choose civil society is that heconsiders that to be for his own good. On this Hobbes insists. But that everyonechooses what seems good to himself is definitional, and does not imply that he

29. SCG, III, chapter 128, 4.30. See Garrett Barden, Essays on a Philosophical Interpretation of Justice: The Virtue

of Justice (Mellen, 1999).


necessarily chooses selfishly, that is, with utter disregard for others’ interests;the good Samaritan chose what seemed to him the good course of action, yet itwas not selfish. For St Thomas, the reason why anyone would choose the orderof peace and concord is because it seemed good to him – this, again, isdefinitional – but, for both Hobbes and St Thomas, selfish choice and choicethat respects others are both possible, and both exist. They differ to an extent inthe importance they give to selfish choice but both acknowledge that selfishnessis common and tends to undermine the peaceful order. For both one function ofthe power underlying law is to force compliance on those who obey the lawonly because they fear the consequences of disobedience; compliance with thelaw is essential to the maintenance of the peaceful order.31

Ultimately, the arguments of St Thomas and Hobbes regarding the basis ofcivil society are strikingly similar: Humans cannot survive alone. Thereforethey are naturally social (St Thomas). Therefore they desire peace and so contractcivil society (Hobbes). Those actions that are required if society is to bemaintained are naturally right (natural laws, theorems of reason). It is to Hobbes’theorems of reason that we now turn.

III. HOBBES’ LAWS OF NATURE

Having established that civil society or peaceful order is desired, Hobbes’ nextquestion spontaneously arises: what actions lead to such an order? And fromthat question arises another: how are these actions to be discovered? TheOccamian positivist tradition suggests that they can be known only byauthoritative information. This is not Hobbes’ position. For Hobbes, as for StThomas, the actions that will bring about and sustain civil society may bediscovered by intelligent enquiry; in as much as one’s conclusions discoverwhich actions they are, the conclusions are “the dictates of right reason.”32

Critically, Hobbes does not suppose that human enquiry as to which actionswill bring about a desired goal is infallible:

By right reason in the natural state of man, I understand not, as many do,an infallible faculty, but the act of reasoning, that is, the peculiar and trueratiocination of every man concerning those actions of his, which mayeither redound to the benefit or damage of his neighbours.33

31. St Thomas writes of the need for law, and of its power to compel behaviour becausesome will act well only because they are compelled so to act, and fear to act otherwise.ST, I-II, Q 95, art 1. In the SCG (III, chapter 128) he writes of such people as thosewho “obey in a servile manner.”

32. De Cive, at 123; Leviathan, at 216-7 [80].33. De Cive, at 123.


If one prescinds from the revelation of God’s law,34 intelligent enquiry isthe only available method of discovering what is to be done, as everyone knowsfrom the intelligent experience of living. Hobbes adds, however, the crucialmethodological and moral precept that the enquirer must free himself from thebias “that his own passions, and selfe-love” would introduce.35 The objectivetruth will appear true, not to any enquirer whomsoever, but only to the authenticor adequate subject.36

It is in this context that Hobbes argues that the actions that lead to theestablishment of civil society or peaceful order – those actions that are discoveredto be the dictates of right reason – are the fundamental laws of nature or “naturallaws”.37 Space does not permit an examination of each of Hobbes’ suggestedprecepts. Here we will consider the first, second, third and eleventh laws ofnature following the numbering in Leviathan but with reference both to it andto De Cive.

The First Law of Nature

Because men by a natural necessity seek what seems good for them, and so tryto replace the natural condition with a peaceful order, the first law of nature is

to seek peace where there is any hopes of attaining it, and where there isnone to enquire out for the auxiliaries of war is the dictate of right reason,that is, the law of nature.38

34. The idea that the most fundamental laws by which a society lives are divinely“revealed” or “inspired” is found in very many human societies. As Europe becameChristian, the Jewish story of the revelation to Moses became dominant, and was,undoubtedly, once thought of as an historical fact. Antigone, in Sophocles’ tragedy,speaks of the mysterious source of those laws that are “not of yesterday or today,but everlasting. Though where they came from none of us can tell.” The ThebanPlays, E P Watling tr (Penguin, 1947). For a fuller dicussion, see Garrett Barden,“Of the Naturally and the Conventionally Just” in Murphy ed, note 4, at 17.

35. Leviathan, at 214 [79].36. See Garrett Barden, “Can the Naturally Just be Discovered?” in Contemporary

Conceptions of Social Philosophy, ARSP Supplementa, Vol V (Steiner, 1988), at170-176. On the authenticity or adequacy of the enquiring subject, see BernardLonergan’s discussion of objectivity as the fruit of authentic subjectivity in Methodin Theology (Darton, Longman and Todd, 1972), at 265, 292; and Frederick E Crowe:“Rhyme and Reason: On Lonergan’s Foundations for Works of the Spirit” in MichaelVerling ed, Developing the Lonergan Legacy (University of Toronto Press, 2004).

37. The laws are substantially the same in both works but are numbered differently.38. De Cive, at chapter 1. Note that “the dictate of right reason” and “the law of nature”

are two expressions for the same object.


The structure of the first part of that dictate comes to this: if you want X, try tofind it or bring it about. It adds only: if you have, literally, no hope of finding itor of bringing it about, then it is foolish to continue trying. The truth of such aproposition cannot be demonstrated because there is no more basic propositionfrom which it can be derived. It is obvious to the intelligent person engaged inaction; it is what was traditionally, and somewhat misleadingly, called a naturallyknown first principle. But naturally known first principles are not known asobjects of enquiry, as conclusions; the principles of action are how intelligenthumans consciously act when engaged in the business of trying to discoverhow something is to be achieved; they are how we are present to ourselveswhen engaged in action.39

The second part of the first law or dictate is that, when to bring about peaceis impossible, then it is reasonable to use the advantages of war, that is, whenone’s neighbour is intent on refusing to live in peace, and so on ruining one’slife, it is reasonable to defend oneself even to the extent of killing him.40

The Second Law of Nature

Because Hobbes’ model is that the original condition is not civil society, but isprior to it, his first law is that civil society is to be established. His second lawin Leviathan is his suggested answer to the question: How most fundamentallyis civil society to be established? His answer is that it can be established onlyamong those who agree to it, that is, who agree to act in a way that bothestablishes and maintains it, and this requires “That a man be willing, whenothers are so too, as farr forth, as for Peace, and for the defence of himself heshall think necessary, to lay down this right to all things ….”41 The equivalentin De Cive is “that the right of all men to all things ought not to be retained; butthat some certain rights ought to be transferred or relinquished,” which, were it

39. See Garrett Barden, After Principles (Notre Dame University Press, 1990), especiallychapter 5. For example, that we cannot knowingly assert a contradiction is acharacteristic of each of us as intelligent and reasonable; the formal discovery ofthat fact is the fruit of a correct understanding of an aspect of intelligence andreasonableness and may be expressed in the logical law: “Not both p and not-p”, or“One cannot assert both p and not-p”, where “p” is any proposition whatsoever. ForSt Thomas this is the first indemonstrable principle of speculative (or theoretical)reason. ST , I-II, Q 94, art 2. See T Murphy, “St Thomas Aquinas and the NaturalLaw Tradition”, note 4.

40. There is of course no idea in St Thomas comparable to Hobbes’ first law becausefor St Thomas, as we saw in Part II above, the peaceful order that is the goal of thelaw is to be found within an already given order; and it is this peaceful order that isthe subject of constant choice.



not done, “war would follow. He therefore acts against the reason of peace,that is against the law of nature, whosoever he be, that doth not part with hisright to all things.”42 If, for example, the continuance of civil society dependson its members respecting each other’s property, it is perfectly clear that suchrespect must be mutual.43 According to Hobbes, in the natural condition, wherethere is neither ownership nor a concept of ownership, “every man has a Rightto everything; even to one another’s body.”44 Although Hobbes considers thathis “Right of Nature” is what “writers commonly call Jus Naturali,”45 he doesnot here use “Right” as it had been used in the jurisprudential tradition. In thenatural condition “nothing can be Unjust. The notions of Right and Wrong,Justice and Injustice have there no place.”46 “Right” in the natural condition issimply the freedom to do whatever one wills, and is in one’s power.

For St Thomas, who never uses the term as Hobbes does here, a person’sius (“right”) is that to which he is entitled; it is essentially something within acommunity of people related to one another in a network of iura (“rights” or“entitlements”). This jural community is chosen in a way that is similar to thesocial order more generally, that is, in jural terms, to the extent that each memberof the community chooses to act so as to respect others’ rights, or fails to sochoose. Were everyone in the community at every opportunity to choose not torespect others’ rights, the community would be destroyed; but for St Thomas,the jural community does not emerge from a pre-jural condition. That thecommunity into which they are born is a jural community is something thatchildren learn. The continued existence of a viable jural community dependson its members understanding in their daily practice what a jural community is,knowing that their community is a jural community, and, for the most part,choosing to act rightly in accordance with that knowledge.

Because St Thomas does not use the term ius in the sense that Hobbes gives

42. De Cive, at chapter 2.43. If Peter respects Paul’s property but Paul does not respect Peter’s, then Peter and

Paul live together in a state of war. The same is true at a more fundamental levelagain. If Peter thinks of possession not merely as a physical fact but also as a juridicalfact, he thinks of both his own and Paul’s possessions as severally owned, and notmerely possessed. If, on the other hand, Paul has no concept of a juridical fact, andno concept of ownership, he cannot but think of what Peter possesses as merelyphysically possessed.

44. Leviathan, at 190 [64]. For Hobbes, there is no ownership in the natural condition:“It is consequent also to the same condition, that there is no Propriety, no Dominion,no Mine and Thine distinct; but onely that to be every mans that he can get; and forso long, as he can keep it.” (Leviathan, 188 [63]). For Hobbes, ownership exists bymutual recognition, and with this St Thomas agrees.

45. Ibid, at 189 [64].46. Ibid, at 188 [63].


to it, Hobbes’ second natural law – again: “that the right of all men to all thingsought not to be retained; but that some certain rights ought to be transferred orrelinquished” – does not appear in St Thomas; at least not in this form. Somethingakin to it, however, does appear in his discussion of theft and robbery in theSumma Theologiae.47 A fundamental Hobbesian right that ought to betransferred or relinquished is the freedom (right) simply to take whatever onecan, whenever one likes; only by relinquishing this freedom is ownershippossible. In his model, St Thomas accepts the existence of ownership, and askswhether or not it is a good. The third reason he gives for his conclusion thatownership is good is interesting:

Thirdly, by this (that is, by people owning their own things or privateproperty) peace between men is better preserved, when each is contentwith what is his. So we see that among those who communally and jointlypossess something, disputes more frequently arise.48

The clear similarity here is the insistence in both writers on a peaceful order asfundamental to the good life. What is equally clear in both is the functionalcharacter of their arguments: for both, law’s function is to contribute to themaintenance of a social order within which people can pursue their lives inpeace. It is true that Hobbes, given the context in which he wrote, is moreaware than is St Thomas of the possibility of the collapse of the order, andhence is more centrally concerned to shore up authority, which he sees as underthreat, whereas St Thomas takes authority quietly for granted.

The Third Law of Nature

When he has set out his first and second laws, Hobbes devotes much of theremainder of his discussion in these chapters, chapter fourteen in Leviathanand chapter two in De Cive, to a discussion of contract, and to showing howthe peaceful order depends on the making and honouring of contracts; theestablishment of civil society depends on the mutual surrender of original“rights,” and such mutual surrender depends on mutual agreement or contract,and would be unreasonable in the absence of any guarantee that such contractswould be honoured. Therefore, “there followeth a Third [law]; which is this,That men performe their covenants made: without which covenants are in vainand but Empty words; and the Right of all men to all things remaining, wee arestill in the condition of Warre.”49

As we have seen, St Thomas does not think that civil society comes about

47. ST, II-I, Q 66, arts 1, 2.48. ST, I-II, Q 66, art 2.49. Leviathan, at 201-2 [71].


in this manner; but he does think that by human law, that is, positive ormetropolitan law, civil society is maintained. And he thinks of positive ius asone kind of contract. When two people begin to trade with each other, theysettle in a mutual private contract the terms of this particular exchange. Forexample, Peter agrees to sell his house to Paul, and Paul agrees to buy Peter’shouse for a mutually agreed sum: this is private contract. Public contract iswhen the exchange rate between two things is settled

by public agreement, as when the entire population consents to thecomparison between two things, or when this is settled by the ruler whohas care of the people, and acts in their place. This is called positive right(ius).50

Thus, for both writers, there are laws that are good not because they are agreedbut because they are so fundamental that without them society would founder,and others that are good because they are agreed, as when various courses ofaction seem reasonable although it is necessary to settle on one; for example, itis important to choose, from among several possibilities, what preciselyconstitutes a binding contract.

Hobbes shows, what is perfectly obvious once it has been shown, that ifpeople are to live together peacefully they must be able to rely upon their mutualarrangements. It is in the nature of mutual arrangements that they be honoured;they would otherwise be, not arrangements, but empty words. It might besuspected that in his third law of nature Hobbes moves improperly from a factto value, from an “is” to an “ought”. In fact, the movement from the naturalcondition to civil society is based on a value, namely, that men desire civilsociety. His argument is, therefore, in two parts: first, the factual element, mutualagreements or covenants are essential to the establishment and maintenance ofcivil society, and covenants are meaningless unless they are kept; and, secondly,which is the element of value, that one who desires to establish and maintaincivil society ought to honour his covenants.51

Hobbes understands the third law, as he had understood the first and second,as functional. These laws of nature or dictates of reason enjoin actions thatbring about a desired end which is the maintenance of civil society, the commongood, the order within which humans can live in peace, each pursuing his owngoals with due respect for others’ pursuit of theirs. St Thomas takes a similarview of the adage that contracts are to be honoured (pacta sunt servanda),which he gives as one of his examples of what is naturally just.52 As withHobbes, this is in order to maintain the common good.

50. ST, II-II, Q 57, art 2.51. See the argument at De Cive, at chapter 3.52. Commentary on Aristotle’s Nicomachean Ethics, V.XII.1019.


The Eleventh Law of Nature

As mentioned above space does not permit an examination of each of Hobbes’laws of nature. Suffice it to take, for one more example, the eleventh law inLeviathan, namely the law of Equity. Hobbes here uses the term to refer to“impartial,” and in that sense, “equitable,” judgment:

Also, if a man be trusted to judge between man and man, it is a precept ofthe Law of Nature, that he deal Equally between them. For without that,the controversies of men cannot be determined but by Warre. He thereforethat is partiall in judgment, doth what in him lies, to deterre men from theuse of Judges and Arbitrators; and consequently, (against the fundamentallLawe of Nature) is the cause of Warre. The observance of this law, fromthe equall distribution to each man, of that which in reason belongeth tohim, is called EQUITY, …53

Hobbes did not invent this perfectly well known and very ancient law; it can befound already in the Torah: “You must not show partiality to the poor nor favourto the great; you must pass judgment on your neighbour according to justice.”54

In Leviathan, as appears from the text of the precept, the reason is that unlessthere is impartial arbitration litigants will be dissatisfied with the adjudicativepractice, will be disinclined to use it, and will resort to war. Hobbes takes it asobvious that controversies will arise. Likewise he takes it as obvious thatpartiality is intrinsically inappropriate to adjudication; which, when oneconsiders the nature of partiality, is true. Impartiality is not a “moral” featureadded to the practice of adjudication; it is essential and intrinsic to it, such thatwithout it adjudication ceases to be adjudication. The partial arbitrator is onewhose own perceived good is served by one rather than the other outcome, andwho allows this bias to influence his enquiry. He will decide in favour of Arather than B no matter what the actual situation; in which case any hearing isa farce that serves only as an attempt to persuade onlookers of itsappropriateness.55

Hobbes’ argument is this: Controversies will arise; they will be solved

53. Leviathan, at 212 [77]. What Hobbes here calls “Equity” is neither a supplement tothe Common Law, as in the Court of Equity, nor “Equity” (aequitas) as used byAristotle and St Thomas. See Garrett Barden, “Aristotle’s Notion of Epieikeia” inMatthew Lamb ed, Creativity and Method: Essays in Honor of Bernard Lonergan,SJ (Marquette University Press, 1981), at 353-366.

54. Wayiqra’ (Leviticus) 19:15. See also Deuteronomy 1:17, quoted in Hobbes, De Cive,chapter 4, and Exodus 23:1-6.

55. See Garrett Barden, “Rhetorics of Legitimacy,” European Journal of Law, Philosophyand Computer Science 2 (1998) 47.


peaceably or by force; it follows from the first fundamental law that if a meansof solving them peaceably is found, it is to be taken; impartial arbitration is theappropriate means; to such arbitration litigants ought to submit “for the reasonwhich commands the end, commands also the means necessary to the end.” 56

The Laws of Nature and the Divine Law

Let us make some final observations regarding Hobbes’ laws of nature. Whentaken simply as a model, Hobbes’ natural condition is a device that allows himwork out “what are the conditions of society, or of human peace; that is to say(changing the words only), what are the fundamental laws of nature.”57 Whenhe is read in this way, he is close to St Thomas. For both writers, civil society ismaintained not by the theoretical existence of these fundamental laws but bytheir observance. The laws of nature dictate those actions that must be practicedby most people, for the most part and most of the time, if peace and civil societyis to be conserved. They are fundamental, because, as we saw in Part II, “beingtaken away, the Common-wealth faileth, and is utterly destroyed”. These lawsare “immutable and eternal: what they forbid, can never be lawful; what theycommand, can never be unlawful.”58 Hobbes suggests, however, from theperspective of one definition of law – that is, the positivist understanding of“Law in generall, [as] not Counsell, but Command” – that the laws of natureare not strictly speaking laws. They are improperly called laws because,considered as reasonable conclusions, they are not commands:

These dictates of Reason, men use to call by the name of Lawes; butimproperly; for they are but Conclusions or Theoremes concerning whatconduceth to the conservation and defence of themselves; whereas Law,properly is the word of him, that by right hath command over others.59

These “laws of nature” are not good because they are agreed; they are goodbecause upon their observance depends the maintenance of civil society.60

However, to the extent that the dictates of reason are “delivered in the word ofGod, that by right commandeth all things; then they are properly called Lawes.”61

This idea from the final sentence in chapter 15 of Leviathan is developed morecompletely and exactly in the fourth chapter of De Cive (“That the Law ofNature is a Divine Law”):

56. De Cive, at 145. That litigants ought to submit to such arbitration is the sixteenthlaw in Leviathan, the fifteenth in De Cive.

57. Ibid, at 110.58. Ibid, at 129.59. Leviathan, at 216-7 [80].60. De Cive, at chapter 2.61. Leviathan, at 217 [80]. See also De Cive, at chapter 3.


The same law which is natural and moral is also wont to be called divine,nor undeservedly; as well because reason, which is the law of nature, isgiven by God to every man for the rule of his actions; as because theprecepts of living which are thence derived, are the same with those whichhave been delivered from the divine Majesty for the laws of his heavenlykingdom, by our Lord Jesus Christ, and his holy prophets and apostles.62

Whatever one may think Hobbes’ religious faith, or lack of it, to have been, itis clear from both works that he asserts an identity between the actions discoveredby intelligent and reasonable reflection on the human condition, and thosecommanded or forbidden in the sacred writings of Judaism and Christianity.63

Thus, Hobbes’ account of the accord between the theorems of reason and thedivine law is close to that given by St Thomas for whom the precepts of the TenCommandments regarding our association with one another are dictates ofreason, that is, discoverable by reason.

IV. THE UNRESOLVED TENSION IN HOBBES’ JURISPRUDENCE

We now come to the kernel of our argument: that Hobbes’ concept of civilsociety and the laws of nature that underpin and sustain it do not sit entirelyeasily with his positivism and that therefore Hobbes’ positivism, at its purest,is impure. We have seen that Hobbes held that there were fundamental laws –the “laws of nature” – without which civil society would founder; that thecontent of these was discoverable through intelligent enquiry by, and only by,those who had overcome their own “passions and selfe-love;” that the functionof less fundamental laws was, just as was the function of the fundamental laws,to maintain civil society. In tension with this is Hobbes’ form of positivism,which we discussed in the Introduction and to which we must now return.

Before doing so, however, let us remind ourselves that for St Thomas theproximate origin of intelligent and reasonable practical conclusions of thingsto be done or omitted is human reason. Human reason is the way in whichhumans participate in the eternal law, which, being identical with God, is theorigin of reason. Our practical conclusions as to what is to be done or omittedare in a sense laws that each of us gives him or her self.64 It is not that commandis absent from St Thomas’ account of law. Command is important for St Thomasfor whom a suggestion that something should be done becomes a law onlywhen it emanates either from the entire multitude or from the public person on

62. De Cive, at 153-4.63. Leviathan, Part III, “Of a Christian Commonwealth”; De Cive, at chapter 4.64. ST, I-II, Q 90, art 4.


whom falls the care of the whole multitude.65 Thus, for St Thomas, proposalsthat are not simply expressions of “laws of nature”, however reasonable theymay be, for example, that motor vehicles must not travel at over 100 kilometersper hour, become laws only when properly legislated, that is, posited. Asuggested provision becomes law only when properly legislated but it remainsthe case that reason is properly the source of law and the criterion of its adequacy.Nor is it the case that for St Thomas an unreasonable law is not a law. It is alaw, but an inadequate one.66 A law intrinsically is a reasonable solution to apractical problem; when it is not in fact a reasonable solution, it is an inadequateor, in the limit, a corrupt law.67

Reason is important in Hobbes for whom laws should be reasonable; lawsof nature are theorems or dictates of reason and “what they forbid can never belawful; what they command can never be unlawful.” Hobbes in one placedistinguishes between adequate and inadequate customs using the criterion ofreasonableness and, therefore, consonance with the laws of nature.68 Customscontrary to the law of nature should not become laws because they will tend toundermine civil society. But what if such customs receive the tacit consent ofthe Emperor? There is a clear problem: that what the Emperor (Sovereign)

65. ST, I-II, Q 90, art 3: “And therefore to make law pertains either to the entire populationor to the public person to whom falls the care of the entire population.” What StThomas here calls the “public person”, Hobbes, in Leviathan, 312 [137], refers toas the “Persona Civitatis, the Person of the Commonwealth,” which in principle,may be the entire population.

66. ST, I-II, Q 95, art 2. In this article St Thomas quotes St Augustine (On Free Will),for whom an unjust law was not a law. At the end of the same paragraph St Thomassubtly dissents from this view with the suggestion that “a law discordant with naturallaw [that is, with reason] is not a law but a corruption of law” (iam non erit lex sedlegis corruptio). Somewhat similarly, a mistaken proposition is a proposition, butan inadequate one. A proposition is the answer to a question; a question looks notmerely for an answer, but for the correct answer; hence, a mistaken or incorrectanswer is an answer, but an inadequate answer. As an example in elementary logic,the proposition “Iceland is not an island” is as good as “Iceland is an island;” asproposed answers to the question as to whether Iceland is in reality an island, theyare not equally good.

67. At ST, II-II, Q 60, art 2, it is said that a judgement “contra rectitudinem justitiae” iscalled “perverse or unjust.” A judgement is “contra rectitudinem justitiae” when itis unreasonable. Of course, there is no automatic, unintelligent, irresponsible orinfallible way of knowing that a judgement in the jural domain is unreasonable, anymore than there is an automatic, unintelligent, irresponsible or infallible way ofknowing whether a particular scientific judgement is reasonable.

68. “Also, Unwritten Customes, (which in their own nature are an imitation of Law), bythe tacite consent of the Emperour, in case they be not contrary to the Law of Nature,are very Lawes.” Leviathan, at 330 [147].


wills or commands is law does not sit well with the conviction that what thelaws of nature command cannot be unlawful, and what they forbid cannot belawful.

When Hobbes discusses the idea that law can never be against reason, heasks the very pertinent question: whose reason?69 His answer – in keepingwith his positivism – is unequivocal: the reason (and will) of the Sovereign. Itfalls to the Sovereign who would enact a law, and not to each individual, tojudge what is reasonable; it is the duty of the subject to obey:70

Before there was any government, just and unjust had no being; theirnature only being relative to some command: and every action in its ownnature is indifferent; that it becomes just or unjust, proceeds from theright of the magistrate. Legitimate kings therefore make the things theycommand just by commanding them, and things which they forbid, unjust,by forbidding them.71

This is, perhaps, Hobbes’ clearest assertion of a positivist account of law inwhich just and unjust depends upon the will of the Sovereign, and is identicalwith what he commands.

We will recall from the passages from Leviathan quoted in the Introductionthat for Hobbes, command intends the benefit or the good of the personcommanding.72 We will also recall that the good is “ever used with relation tothe Person that useth them;” there is no good “simply and absolutely so; norany common Rule of Good … to be taken from the nature of the [object itself].”73

Hobbes is emphatic that the good is what a person – including the Soverign –takes to be good.74

69. “And it is true (that law is not against Reason); but the doubt is, of whose Reason itis, that shall be received for Law.” Leviathan, at 316-317 [139-140].

70. “That the judging of good and evil belongs to private persons is a seditious opinion.”De Cive, at 243.

71. Ibid, at 244-245.72. Again:

COMMAND is, where a man saith, Doe this, or Doe not this, withoutexpecting other reason that the Will of him that sayes it. From this it followethmanifestly, that he that Commandeth, pretendeth thereby his own Benefit:For the reason of his Command is his own Will onely, and the proper objectof every mans Will, is some Good to himselfe.

Leviathan, at 303 [131-132]. “Counsel”, on the other hand, intends the benefit ofthe person to whom it is given: “… between Counsell and command, one greatdifference is, that Command is directed to a man’s own benefit; and Counsell to thebenefit of another man.” Leviathan, at 303 [132].

73. Ibid, at 120 [24]; see also De Homine, at chapter 11.74. In the eleventh chapter of De Homine Hobbes again states that the good is relative

to “person, place and time.”


A person will choose to do what at the moment of choice seems good. SoHobbes defines “the good” as “the object of any mans Appetite or Desire,” andbecause appetite and desire may change with circumstance, age and inclination,“the good,” so understood, may change. What someone once found good, theymay later find evil. On this definition of “good” there seems to be no more tosay. However, the fact that at one time some course of action may seem goodand at another time evil or bad, shows the possibility of a certain kind of error.Someone might choose at a particular time a course of action thinking that itwould lead to a desired outcome. Having carried out the action he may discovereither that he was mistaken in thinking that it would lead to the envisagedoutcome or that the outcome turns out not to be what he desired. Hobbesdistinguishes apparent from real good in this way. If one fails to take accountof the foreseeable long term deleterious consequences of an action one maywell think it a real good, whereas it is but apparent.75

Civil society, Hobbes also holds, requires a Sovereign whose right is tocommand his subjects whose duty it is to obey. But what the Sovereigncommands is directed to his own benefit. What is to his own benefit is what heconsiders to be to his own benefit; with the proviso that, by overlookingforeseeable deleterious consequences, he may err. It is therefore not inevitablethat what the Sovereign will consider to be to his own benefit will be for thecommon good, which is the maintenance of civil society.76

Because, for Hobbes, the good is relative to the person, the good is obviouslyalso relative to the Sovereign. What seems good to the Sovereign is good fromhis perspective, but may be evil from the perspective of the subject: “sincedifferent men desire and shun different things, there must needs be many thingsthat are good to some and evil to others .…”77 And there is, if the good issimply relative, no other perspective. Consequent is that the perspective of thesubject becomes irrelevant; the Sovereign commands by right; what theSovereign commands is what is to be done or not done; the subject is obliged toobey; and because the Sovereign has power over what the subject is obliged todo or refrain from doing, the subject may also be compelled to do or to refrainfrom doing.78

75. De Homine, at chapter 11, 47.76. But nor is it inevitable that the Sovereign will simply ignore the common good in

favour of his own selfish interest. Power may well corrupt but does not necessarilyalways do so. What the Sovereign finds good may fail to be for the common goodfor two quite different reasons. First, the Sovereign may enact a law that he, quitegenuinely, but mistakenly, thinks is for the common good. Secondly, the Sovereignmay have no interest in the common good but may consult exclusively his owninterest as he sees it. Both are real, and commonplace. Since no human is infallibleor without selfishness, in the longer period of human affairs, both are inevitable.

77. De Homine, at chapter 11, 47.78. St Thomas writes of the compelling power (vis, or virtus, coactiva) of law, of


Critically, however, Hobbes considers that there are goods common to all,and that among these is civil society, which allows “the greatest of goods foreach [which] is his own preservation.”79 Elsewhere he writes: “There can be acommon good, and it can be rightly said of something, it is commonly a good,that is, useful to many, or good for the state.”80 The notion of relativity remains,for what is commonly a good is good relative to many or to the state.81 Butconsider the phrase “good for the state.” The state – which, for Hobbes, isequivalent to civil society – is, for Hobbes, the basic good. What wouldundermine the state is evil. Everyone is taken to accept this; the image of civilsociety as a contract is the symbol of such universal acceptance. The wholethrust both of Leviathan and of De Cive is to persuade the reader that civilsociety is good because outside it human living is intolerable.

The tension in Hobbes arises from the fact that civil society requires notonly laws of nature that are theorems of reason discoverable through intelligentmoral enquiry, but also a Sovereign with power to make laws, and to compeltheir observance. Without such a Sovereign civil society would degenerate intothe original chaos. Ideally, the laws made by the Sovereign should serve tosustain civil society. But the enacted or positive laws gain their authorityexclusively and entirely from the fact that they express the Sovereign’s will.But if we ask the question – are the Sovereign’s laws always good? – we noticethat it is ambiguous because it can be answered from a number of differentperspectives. From the perspective of the Sovereign, they are by definition,since “he that Commandeth, pretendeth thereby his own Benefit.”82 From theperspective of the subject they may or may not be; all that is important is thatthey express the Sovereign’s will. What of the perspective of the state? Theproper and clear reply to this question is that it does not properly arise becausethe state is not an entity that can have a perspective.83 From the perspective ofHobbes as theorist it appears that unless the Sovereign’s power is absolute civilsociety cannot survive:

But the obligation to perform this [obedience] grows not immediately

punishment, and of why it falls to the public, and not the private, person to decideon punishment. See, for example, ST, I-II, Q 90, art 3, ad 2; Q 92, art 2, ad 3; and II-II, Q 64, art 3.

79. De Cive, at 48.80. Ibid, at 47.81. Since what is useful to many is not necessarily useful to all, this is not the common

good as understood by St Thomas, who always understood the common good assomething useful and beneficial to all members of the community.

82. Leviathan, at 303 [131].83. We can properly ask if a particular statute tends to preserve or destroy the social

order but that question is always asked by, and the tentative answer given by,someone.


from that contract, by which we have conveyed all our right on the city;but immediately from hence, that without obedience the city’s right wouldbe frustrate, and by consequence there would be no city constituted.84

But later, in the thirteenth chapter of De Cive, Hobbes writes of “the duties ofthem who bear rule,” which are said to be “contained in this one sentence, thesafety of the people is the supreme law.”85 He repeats that the Sovereign cannotbe subject to laws, and gives, as always, the same reason: he who by rightmakes laws may by right abrogate those that he has made and make others.Nonetheless, he writes in the same paragraph, “it is their [the rulers’] duty in allthings, as much as possibly they can, to yield obedience unto right reason,which is the natural, moral, and divine law.” This sentence could have beenwritten by St Thomas; compare it with St Thomas’ answer to the question as towhether human positive law is derived from natural law:

to the extent that it [a human law] is just, it has the virtue of law. Inhuman affairs something is said to be just from the fact that it is rightaccording to the rule of reason. Reason is the first rule of natural law, aswas clear from what was said above [Q.91, art.2, ad.2]. Thus every humanpositive law has the character of law to the extent that it is derived fromnatural law. If it is discordant in some way with natural law, it is not somuch a law as a corruption of law.86

The difference between Hobbes and St Thomas here is that Hobbes uses theword “law” to mean an “authoritative command,” whereas St Thomas uses theword to mean “a reasonable authoritative command.” But, for both, there issomething wrong with an unreasonable law. As has been said, the chief duty ofthe Hobbesian sovereign is to rule reasonably (“to yield obedience unto rightreason”). This is “because dominions were constituted for peace’s sake, andpeace was sought after for safety’s sake; he, who being placed in authority,shall use his power otherwise than to the safety of the people, will act againstthe reasons of peace, that is to say, against the laws of nature.”87

84. De Cive, at 182. Although in Hobbes does refer in the same paragraph to theSovereign’s absolute power, he also acknowledges that it is rather his right that isabsolute; for the Sovereign cannot compel performance as long as the subject canstill prefer death, or, less dramatically, punishment.

85. Ibid, at 258.86. ST, I-II, Q 95, art 2. When St Thomas writes of a positive law being “derived” from

natural law, he does not mean that it is formally deduced as a logical conclusionfrom premises. He has in mind rather the way in which the detailed collision rulesin shipping law are derived from the general rule of reason that one is to navigatesafely.

87. De Cive, at 258.


In the Aristotelian tradition to which St Thomas belongs there areacknowledged to be positive laws that settle what is just and unjust.88 Thecollision rules that guide sailors in their effort to navigate safely in a commonpart of the sea, whether they be considered as established customs or as statutes,provide clear examples of what is originally indifferent but once established isno longer indifferent. They show also the relation between the detailed rules,and the basic rule which in this case is that ships should navigate safely withdue regard for other vessels. There may be many different, equally good, detailedarrangements that would promote safe navigation, but, between ships navigatingregularly in the same area, the clearly intelligent thing to do is to come to oneagreed arrangement within the confines of the basic rule.89

From the perspective of Hobbes’ theory, however, if such a selectedarrangement is thought of as the Sovereign’s command, what if, when put tothe test in practice, it shows important flaws? And what if, from vanity,stubbornness, or rank self-interest the Sovereign insists on its continuing? Herethe tension in Hobbes’ account reaches its peak: “what the legislator commandsmust be held for good, what he forbids for evil.”90 The phrase “must be heldfor” shows some hesitation, some awareness of the tension, on Hobbes’ part.91

In tension, therefore, with his concept of civil society as being maintainedby “dictates of reason” that are knowable through intelligent enquiry by onewho is free of “passions and selfe-love,” Hobbes held that law expressed thewill of the Sovereign who necessarily sought his own good, as he understood itto be, which might or might not coincide with the good of his subjects, and of

88. “There are two sorts of political justice, one natural and the other legal. The naturalis that which has the same validity everywhere and does not depend upon peoplethinking this or that; the legal is that which in the first place can take one form ofanother indifferently, but which once laid down, is no longer indifferent….” Aristotle,Nicomachean Ethics, V.1135.20. St Thomas accepts this distinction in hiscommentary, where he discusses its relation to similar distinctions in Roman law,as well as in both Summae. In Decem Libros Ethicorum Aristotelis ad Nicomachumexpositio, V.XII.1016; ST, I-II, Q.95; II-II, Q 57, art 2; and SCG, III, chapter 129.

89. It would be obviously unintelligent were British, Faroese, Icelandic, Irish, andNorwegian ships in the north east Atlantic to navigate according to significantlydifferent and mutually confusing rules. The detailed arrangement selected wasoriginally indifferent but once settled is no longer indifferent, and is an example ofpositive convention, custom, law or statute. Whatever name one chooses to give it,however one eventually understands it, and whether or not it is explicit in a set ofcustoms or statutes, the basic rule that ships should navigate safely is not subject toprecisely this kind of mutual agreement. Consider also how utterly confusing itwould be were different ships to choose different longitudinal meridians.

90. De Cive, at 244.91. It is no doubt a reference, perhaps not wholly deliberate, to the juridical adage that

the decided case is held to be true: Res iudicata pro veritate tenetur.


civil society. But, in the end, only the Sovereign’s power could maintain civilsociety, and so his reason, and his will must prevail; for “How many kings, andthose good men too, hath this one error, that a tyrant king might be put to death,been the slaughter of.”92 Without the supreme authority, civil society will notbe maintained; all laws and the Sovereign himself are within that context; thus,it is not the Sovereign but civil society which is most fundamental and so, evenat his most positivist, Hobbes’ positivism is impure, for law’s function is not inthe end to ensure the Sovereign’s will but to maintain civil society.

Thus, Hobbes is not content to rest in the conclusion that the Sovereignmay legitimately command whatsoever he will. He may, of course, have thepower; but his authority is limited to what he may legitimately command. Perhapsthe clearest and least ambiguous expression of this limitation is in De Cive:

The laws of nature are immutable and eternal: what they forbid, can neverbe lawful; what they command can never be unlawful …. Yet … what isdone with equity at one time, is guilty of iniquity at another; and whatsuits reason at one time, is contrary to it another. Yet reason is still thesame, and changeth not her end, which is peace and defence, nor themeans to attain them, to wit, those virtues of the mind which we havedeclared above, and which cannot be abrogated by any custom or lawwhatsoever.93

This passage is entirely consonant with what we have seen to be St Thomas’position, namely, that what is discordant with natural law or reasonable actionis not so much law as a corruption of law.

V. CONCLUDING REMARKS

Of this tension in Hobbes’ jurisprudence two things may be said. The firstrelates to the situation in which Hobbes wrote; the second is universal. First,since Hobbes wrote in time of civil war, and the immediate purpose of his greattheoretical account of human civil society was to support security, anythingthat tended to undermine the security of the Sovereign was to him anathema.He sought a condition within which if there was not intellectual agreement,there was at least unquestionable will. Secondly, the unresolved tension in histhought is found wherever there is Sovereign and subject, for neither is infallible,neither is morally perfect. Sovereigns and their laws, like judges and their

92. De Cive, Author’s preface, at 96-97. Perhaps there is reference here to Cicero’sdoctrine of the legitimacy of tyrannicide (see, for example, On Duties, III, 19 and85) that was in Hobbes’ time well known.

93. De Cive, at 149-150.


judgments, will be sometimes foolish, sometimes deliberately corrupt, and, fortheir part, subjects, mistakenly or corruptly, will sometimes think, or affect tothink, wise laws foolish, foolish laws wise, corrupt laws good, and just lawscorrupt. For love, hate and other desires can corrupt judgment and decision,not only in the instant case, but habitually, so that the dialectic that is inevitablein human affairs is between not only the good but also between the good andthe corrupt, and between the corrupt.94

We may ask where does this leave Hobbes’ relativism? In the sixth chapterof Leviathan, “good” and “evil” are said to be relative terms: “For these wordsof Good, Evill, and Contemptible, are ever used with relation to the person thatuseth them: There being nothing simply and absolutely so ….”95 But, as wehave seen, this is not all that is to be said. The condition of peace or civilsociety is not good because men think that it is good; rather they discover thatit is, definitively, good. There is an apparent tension here that Hobbes neverexplicitly resolves.

There is the germ of a resolution of this tension in the appeals to what isnatural to human beings and to the golden rule. Why do humans discover thatthe condition of peace is good, and better than continual war? They do sobecause, as we have seen, they experience the “Passions that encline men toPeace (which are) Feare of Death; desire of such things as are necessary tocommodious living; and a Hope by their industry to obtain them.” These passionsare not chosen; they are natural to humans; they are, in fact, equivalent toAristotle’s and St Thomas’ idea that humans are naturally social, cannot fendentirely independently of one another and so need a way of life in which theycan live together in peace. Did humans not experience these passions, werethey not naturally social, the condition of peace would not seem good to them.Civil society is not good because men think so; it is good for them because ofthe kind of beings that they are.

Hobbes’ laws of nature are “convenient Articles of Peace, upon which menmay be drawn to agreement.”96 Hobbes is convinced that humans can be ledby their reasonable and responsible enquiry to discover these fundamental lawswhich they may choose to observe or to flout. But, and this is crucial, thewisdom of the laws and the value of acting in accord with them will appear

94. That one man’s terrorist is another’s freedom-fighter is not proof that relativism iscorrect, but it expresses the truth that at times the actual personal foundations orcontexts of the antagonists are so mutually alien that, without intellectual and moralconversion, the proximate possibility of fruitful discussion and argument is absent,and civil society degenerates asymptotically towards the natural condition in a civilwar. The modern world does not lack examples of such murderous conflict bothbetween and within states.

95. Leviathan, at 120 [24].96. Ibid.


only to those who accept “that Law of the Gospell; Whatsoever you requirethat others should so to you, that do ye to them. And the law of all men, Quodtibi fieri non vis, alteri ne feceris.”97 One who does not accept these laws willneither discover the articles of peace nor, if another proposes them, will he bepersuaded. The crucial importance of the moral context is clear to Hobbes:

…it is true that hope, fear anger, ambition, covetousness, vain glory, andother perturbations of the mind, do hinder a man, so as he cannot attain tothe knowledge of these laws whilst those passions prevail in him: butthere is no man that is not sometimes in a quiet mind.98

For Hobbes, when one is in a quiet mind and selfish passions do not prevail,these laws are easily known; indeed, at such a time

… there is nothing easier for him to know, though he be never so rudeand unlearned, than this only rule, that when he doubts whether what heis doing to another may be done by the law of nature or not, he conceivehimself to be in that other’s stead … And this rule is not only easy, but isanciently celebrated in these words quod tibi fieri non vis, alteri nonfeceris: do not that to others, you would not have done to yourself.99

And in Leviathan, as we have shown, Hobbes equates this law from which theothers spring and are summed up with the law of the Gospel. St Thomas, inchapter 128 of the Summa Contra Gentiles, does precisely the same thing: theCommandments that govern our association with each other spring from andare summed up in the ancient rule from Leviticus and which is said in the NewTestament to sum up all the law and the prophets: “Thou shalt love thy neighbouras thyself.”100 Hobbes is quite clear that what will seem good to the personwho takes others into account will find good what the entirely selfish personwill not. There remains this unavoidable relativism. But he is also quite clearthat the person who takes others into account will judge rightly.

Between the two great thinkers who have been thought of as sources of thetwo irreconcilable streams of thought that we referred to at the beginning ofthis article, there remains this difference. St Thomas imagined a stable andmore or less internally peaceful society; he worked out in theory, what waslargely known in practice, the character of the laws and social virtues neededto maintain it in peace. Hobbes knew civil war and greatly feared it; it was for

97. Ibid, at 190 [65]. The quotation for the Gospel is from St Matthew 7: 12. The lawof all men is: “What you do not wish done to you, do not do to another.”

98. De Cive, at 148.99. Ibid.100. Leviticus 19:18.


him the experienced origin of his image of the natural condition “where everyman is Enemy to every man … [and where there is] … continuall feare, anddanger of violent death ….”101 These very different perspectives, very differentfeelings, in very different societies, led to very different expressions on the partof St Thomas of Hobbes. These very different expressions, however, have intheir turn led many to see greater and more fundamental theoretical differencesbetween these thinkers than in fact exist.

101. Leviathan, at 186 [62].

Law’s Function in De Cive and Leviathan: A Re-Appraisal of the Jurisprudence of Thomas Hobbes

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