Hobbesian resistance and the law of nature

ABSTRACT

Hobbes’s account of the individual’s right to resist sovereign authority is nuanced. His allowance for cases in which a sovereign’s command falls outside the terms of the social contract, despite recent reappraisals, cannot rescue him from the accusation that his system is contradictory. It has been suggested that some Hobbesian rights can be transferred whilst others are quarantined, or that it is the institution of law, rather than the particular commands of the sovereign, which Hobbes ultimately upholds. By reconsidering Hobbes’s concept of sovereignty alongside his theory of natural law, I argue that his system remains in tension with itself. Hobbes’s prioritisation of sovereign judgement over that of the individual, when combined with the principles he retains from the natural law tradition, renders his theory of resistance irreconcilable with his position on sovereignty.

KEYWORDS:

• Hobbes
• resistance
• sovereignty
• natural law
• Thomism

Introduction

For Hobbes, not only is it natural for individuals to protect themselves from the threat of death and physical danger, it is also right for them to do so. In civil society, subjects retain the right of nature to judge the most appropriate means of personal preservation and protection. Yet self-preservation within the commonwealth also requires the interpretation of the law of nature to rest with the sovereign. So, if, as Hobbes states, the law of nature prescribes the necessary means of self-preservation, it seems an individual cannot transfer her right to judge the means of self-protection to the sovereign and retain the right of nature without contradiction.

This is the thesis defended in this article. A familiar discussion in Hobbes scholarship, though seldom with reference to natural law theory,¹ concerns the apparent tension between the transfer of private judgement to the sovereign and the residual possibility for resistance to preserve one’s life. For example, Steinberger observes “that citizens are to transfer all their rights and that they are to retain the right to self-protection; that the sovereign is owed absolute obedience and that the sovereign may be disobeyed in certain cases”.² He describes it as “an apparent contradiction so substantial as to raise serious doubts about the cogency of Hobbesian political thought in general”.³ And Sreedhar contends there is a “genuine puzzle about how to understand the relationship between the conditional nature of Hobbes’s account of political obligation and the unconditional, or absolute, nature of the Hobbesian sovereign”.⁴

According to Sreedhar, Hobbes develops a right⁵ of resistance but “the details of his arguments for that right”⁶ haven’t attracted sustained attention. The attention it has attracted has been predominately critical:⁷ for example, Hampton⁸ described Hobbes’s concession to the individual’s natural right to life as the “Achilles heel of his political theory”,⁹ and Gauthier¹⁰ defended Hobbes from contradiction at the cost of absolutism. Sreedhar and May write against this tide, both claiming that Crito’s tragic-heroic Socrates was wrong to have accepted the offer of hemlock without reluctance. When subjects enter a social contract, Ancient Athenian or otherwise, they do not renounce all their natural rights; they transfer most to the sovereign but save the right to self-preservation. It would follow that Socrates had no moral obligation to drink the poison on the strength of sovereign decree and thus condemned himself to death.

Previous attempts to find consistency in Hobbes’s position, including those of Sreedhar, May and Steinberger, look for compatibility between the purpose for which subjects enter the covenant to obey a sovereign and the conditions that excuse disobedience. By reconsidering the issue from the perspective of Hobbes’s natural law theory, I shall argue it is the natural law that prohibits the breaking of covenants, once the contract has been entered, that places the subjects under a moral obligation to obey their sovereign. For the subjects to alienate to the sovereign their private interpretations of natural law, as Hobbes insists is necessary for the institution of the commonwealth, is to give the sovereign the sole authority to judge whether the subject has broken the covenant in any particular case. It follows that to determine whether a sovereign command lies outside the scope of the covenant, and therefore might legitimately be disobeyed, would require a judgement on the part of the subject that has already been alienated to the sovereign. If the retention of private judgement is indeed a “disease” tending to the dissolution of commonwealths,¹¹ this apparent contradiction is not inconsequential for Hobbes’s political argument. Jaume suggests that a “reservoir of rights” underpins Hobbes’s theory of political obligation, which may have socially destructive (though individually valuable) effects, such as an individual’s right to join a rebellion started by others.¹²

I now establish that Hobbes is committed to a theory of natural law and what this entails with reference to the natural law “tradition”. I then show that Hobbes’s argument for sovereign authority relies upon his account of natural law, and how it is the combination of the two that is the source of the difficulty. I then respond to the alternative analyses of Sreedhar, May and Steinberger. I conclude that the apparent contradiction is irremediable because Hobbes attempts to establish a duty of obedience to the sovereign on moral principles, drawn from the natural law tradition, that cannot support it.

Hobbes and the natural law tradition

For Hobbes, anyone who “makes an effort to maintain his ability to reason properly”¹³ can arrive at “Conclusions, or Theoremes”¹⁴ concerning the best way to preserve one’s life. What Hobbes calls the “laws of nature”¹⁵ are “precepts” and dictates of “right reason” (dictamen rectae rationis)¹⁶ discovered by reasoning correctly about the means for the “preservation” or “conservation” of one’s life.¹⁷ Accordingly, he defines the law of nature as a

Precept, or generall Rule, found out by Reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same; and to omit, that, by which he thinketh it may be best preserved.¹⁸

Notwithstanding the centrality of this concept to his political theory, there is an ongoing debate on whether Hobbes belongs to the natural law “tradition” or radically departs from it.¹⁹ For example, Burgess follows Warrender in arguing that Hobbes is, indeed, a “genuine natural-law thinker” because he believed “morality was not the creation of the sovereign or of civil society” but instead “existed prior to and independently of the positive morality established by authority”.²⁰ By contrast, Martel suggests that Hobbes relies “on a sort of ruse” because the unknowability of natural law requires that moral objectivity is produced politically: “the sovereign’s subjective ‘ought’ becomes or substitutes for natural law itself” and Hobbes simply falls “into the expedient of pretending there is an objective moral law”.²¹ Similarly, Laing and Wilcox accuse Hobbes of wrenching natural law from the “ontological framework within which it is situated by the central tradition” and producing instead a “reductively anthropomorphic vision” that allows natural law to become “what humans, in their deficiency, might like it to be at any given moment”.²² This disagreement matters for the question of resistance because if, as Warrender and Burgess conclude, natural law is superior to the positive law of the sovereign and discoverable by anyone with the capacity to reason,²³ then Hobbes has endorsed a moral standard against which the sovereign’s commands can be judged by any of their subjects.

This point can be illustrated by the work of earlier theorists on the moral status of natural law and its implications for sovereign authority. For Aquinas, the pursuit of good and avoidance of evil is the first precept from which all other natural laws are derived: “Whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of natural law as something to be done or avoided”.²⁴ The natural inclination to do good includes the aim of self-preservation “in common with all substances” and to know the truth about God and to live in society, which is specific to the nature of man alone.²⁵ Aquinas describes the natural law as the “imprint on us of the Divine light” and that its general principles are known to all rational creatures.²⁶ Salas, Vázquez and Suárez follow Aquinas in positing an objective good, manifest in rational nature and discoverable by human reason.²⁷ The laws of nature are “dictates of right reason” which indicate an act’s intrinsic “goodness or badness”²⁸ and “the natural law presupposes in the acts themselves a certain necessary uprightness or evil”.²⁹ This view also extended beyond the Thomist tradition. Grotius, for example, writes: “Natural right is the dictate of right reason, shewing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature”.³⁰

And what if these self-evident moral principles are perceived to clash with the sovereign’s commands? Aquinas argues that “every human law has just so much of the nature of law, as it is derived from the law of nature”, and a human law that “deflects” from the law of nature is “no longer a law but a perversion of law”.³¹ Such a “law” is unjust, does not bind in conscience and should not be obeyed.³² The Dominicans and Jesuits who revived Aquinas’s natural law theory generally agree that a sovereign command opposed to the law of nature cannot be morally binding. For Suárez, there cannot be a moral duty to obey a “law” that commands what is morally wrong.³³ However, it was recognised that to make obedience to a sovereign depend upon individual interpretation of natural law would provide no solution when individuals arrived at opposing conclusions.³⁴ Aquinas argued that “evil persuasions” and “vicious customs and corrupt habits” may cause the natural law to become “blotted out in the case of a particular action”,³⁵ while Molina and Suárez noted that, as “fallen creatures”, ignorance and uncertainty of many aspects of morality are conditioning factors for any individual’s interpretation of natural law.³⁶ Given the disorder that would be caused by allowing each subject to decide what natural law requires, it was thought that the injustice of a law had to be “morally certain” before it ceased to oblige.³⁷

This presumption in favour of the sovereign’s judgement, however, could not be independent of its moral content, because subjects do not entirely alienate their interpretation of natural law. Natural law, in this tradition, remains as the ultimate standard against which the laws of a sovereign may be judged, and ultimately determines whether the subject is bound in conscience to obey. From this perspective, it is permissible to ask what individual subjects may do to protect their lives against a legitimate sovereign.³⁸ Jesuits, for example, argued that the rights of a prince to imprison, torture and punish criminals “were not matched by any corresponding duty of compliance on the part of private individuals when their self-preservation was involved”.³⁹

In crucial respects, Hobbes’s conception of natural law aligns with this tradition. First, he intends his laws of nature to be read as prescriptive moral principles rather than as descriptive laws of human behaviour. Here we encounter an apparent inconsistency between the moral obligation to act upon the requirements of natural law and Hobbes’s determinist account of human reasoning, principally in Chapters 1–6 of Leviathan, in which to act in pursuit of any end is to have an appetite or desire towards it, which means to be moved towards whatever has caused the desire.⁴⁰ The first “internall beginning of all Voluntary Motion” is imagination (or fancy) because such motion “depend always upon a precedent thought of whither, which way and what”.⁴¹ Thoughts, in turn, “are Motions within us, reliques of those made in the Sense”.⁴² This is how Hobbes understands the consequence of thoughts/imaginations (the two words are used interchangeably), including when they are “regulated” by a desire for some end.⁴³ At the basis of every thought is a sense impression. A single thought is “a Representation or Appearance, of some quality, or other Accident of a body without us … The Original of them all, is that which we call SENSE” and “the cause of Sense, is the Externall Body, or Object, which presseth the organ proper to each Sense”.⁴⁴ Hobbes therefore perceives a causal chain from external body to sense, from sense to thoughts/imaginations, from thoughts to internal motions, from these to desires, deliberation and, finally, the will (defined as “the last Appetite in Deliberating”).⁴⁵ He argues that, “because every act of mans will, and every desire, and inclination proceedeth from some cause, in a continuall chain … they proceed from necessity”.⁴⁶

In this determinist picture of thoughts and desires emerging by necessity from physical bodies in motion, it would seem nonsensical to present natural law as a guide to individual moral choice or judgement. For Springborg, “Hobbes’s materialism is such that ‘matter in motion’ … produces action in a morally neutral form”.⁴⁷ It is therefore inconsistent, she argues, to claim that one has the right to judge how to preserve one’s life: “If will is the last appetite, the right to make our own judgements is out the window!”.⁴⁸ Springborg deduces “fatal consequences for any concept of freedom as the power to ‘own’ one’s self as an actor capable of responsibility for one’s own actions”.⁴⁹ It seems we might understand Hobbes’s laws of nature not as moral but rather as mechanical or behavioural laws, in accordance with his determinist psychology.⁵⁰

On the other hand, our reasoning is fallible. The laws of nature, found out by human reason, may be incorrectly applied: men “may deceive themselves”.⁵¹ If reasoning itself is liable to error, then the laws of nature – as a product of human reasoning – cannot be reducible to fixed laws of physical motion. Where Hobbes warns that “he who takes up conclusions on the trust of Authors … loses his labour”⁵² and “to foresake his own naturall judgement … is a signe of folly, and generally scorned”,⁵³ he implies a degree of individual responsibility for how one reasons. This thought is present in connection with the laws of nature, where he argues that “anyone who willingly and knowingly does things which will have the effect of weakening or destroying his rational faculty is willingly and knowingly violating the law of nature”.⁵⁴ He then comments on “how easy the laws of nature are to observe, since they require only an effort (but a real, sustained effort) … and that is all that we are obligated to by our rational nature”.⁵⁵ It would make little sense for Hobbes to require a “real, sustained effort” to do what he believed would happen anyway by psychological necessity.

Evidently, one of Hobbes’s aims is to explain individual responsibility for acting on the laws of nature, and in so doing his language is not obviously compatible with determinism. Instead, he consistently invokes the language of moral responsibility. If the natural law, for example, “gives precepts to the will”,⁵⁶ then, to receive these precepts, the will could not merely be the outcome of a mechanical chain of cause and effect. Indeed, where he defines virtue as the habit of acting according to natural law,⁵⁷ he implies that to do so is morally praiseworthy. Natural laws are “also Morall Lawes; consisting in the Morall Vertues, as Justice, Equity, and all habits of mind that conduce to Peace, and Charity”.⁵⁸ Conversely, to act contrary to natural law is a sin and the habit of doing so is vice.⁵⁹ He writes, for example, that, “because the law of nature is eternal, violation of covenants, ingratitude, arrogance, and all facts contrary to any moral virtue, can never cease to be sin”.⁶⁰ Again, when he states that “a sin [peccatum] takes in everything done, said and willed against right reason”,⁶¹ logically he must grant an individual the freedom to act against the precepts of right reason (or natural law).

In short, where Hobbes describes natural law with the moral vocabulary of instructions, precepts, rules, dictates, teaching, forbidding, obligations and commands, and refers to virtue, vice, effort, striving, conscience and habit on the part of the subject, he takes an orthodox moral position that implies individual responsibility for freely chosen thoughts and actions. It seems he cannot consistently have held natural law to be reducible to physical motion that fully determines the will: to do so would have fatally undermined his moral argument. As Warrender and Burgess have argued, if the laws of nature were descriptive rules, they would “merely describe what individuals in fact do”; they must instead be read as prescriptive rules for human conduct.⁶² I therefore agree with Springborg that Hobbes has not consistently reconciled the moral language of natural law with his mechanistic psychology.⁶³ Notwithstanding this inconsistency, I assume that Hobbes intended for individuals to use their own will and judgement to comprehend and act on the laws of nature.

Secondly, Hobbes considers the laws of nature to be within the grasp of anyone with the capacity for reason; indeed, “nothing is easier to grasp, even for the ignorant and uneducated”,⁶⁴ because “reason, which is the law of nature itself, has been given to each and every man directly by God as a Rule for his actions”.⁶⁵ In language reflective of the natural law tradition, Hobbes writes that God has revealed natural law “to all men through his eternal word which is innate in them”.⁶⁶ The laws of nature are “written in men’s hearts”.⁶⁷ The universality of natural law follows, for Hobbes, from the importance he attaches to the natural equality of human beings and the moral principle of reciprocity.⁶⁸ As Burgess observes, these laws are “what virtually everyone would have accepted as a set of normal moral principles, summed up in the negative version of the Golden Rule”:⁶⁹ “Do not that to another, which thou wouldest not have done to thy selfe”.⁷⁰

A third point of continuity is that natural law is independent of, and morally superior to, the laws of the sovereign. This is evident in the fact that, for Hobbes, natural law is the moral standard to which the sovereign’s own commands are subject: for example, if the sovereign should punish a subject known to be innocent, he would violate the natural laws that regulate revenge, gratitude and equity.⁷¹ Hobbes writes that those who exercise power

would be acting contrary to the law of nature (because in contravention of the trust of those who put the sovereign power in their hands) if they did not do whatever can be done by laws to ensure that the citizens are abundantly provided with all the good things necessary … for the enjoyment of life.”⁷²

This connection is also evident in the subjection of private individuals to natural law even in the presence of their sovereign. The laws of nature are “Immutable and Eternall; For Injustice, Ingratitude, Arrogance, Pride, Iniquity, Acception of persons … can never be made lawfull”.⁷³ The moral virtues they enjoin as means to peace, therefore, “can never be repealed by either custom or civil law”.⁷⁴ Burgess is therefore correct to argue that Hobbes’s natural law is “prior to and independent of civil society” and “superior to positive law”.⁷⁵ As Warrender puts it: “The basic obligation of the citizen to obey the sovereign cannot itself be created by the sovereign’s fiat”;⁷⁶ instead, the obligation “rests for each individual upon a private sphere of morality – an obligation to obey natural law as interpreted by himself”.⁷⁷

However, Burgess adds that Hobbes, unlike Aquinas, does not believe that a sovereign command in conflict with natural law cannot be a valid law.⁷⁸ Similarly, though emphasising that Hobbes’s natural law “requires the supersession of private by public judgement” (contrary to Warrender’s emphasis on individual interpretation), Zagorin finds that, “by converting natural law into a purely moral principle”, Hobbes could be “both a legal positivist and part of the natural law tradition”.⁷⁹ Notwithstanding this caveat, if Hobbes did not reduce natural law to human law but held it to be an independent and superior source of moral obligation, then Martel’s suspicion that Hobbes’s natural law is “unknowable” unless identified with the sovereign’s will seems at odds with Hobbes’s meaning. Likewise, Laing and Wilcox’s criticism that Hobbes breaks with the tradition by reducing natural law to arbitrary human choice is unwarranted. Hobbes states unequivocally that natural law is “not an agreement between men” but a dictate of right reason.⁸⁰

Finally, although Hobbes departs from the tradition by denying that there is anything “simply and absolutely” good or evil,⁸¹ from the perspective of the individual’s duty of obedience this deviation has little consequence. The laws of nature are means to the “preservation”⁸² or “conservation” of one’s life and, though Hobbes admits exceptions to the good of self-preservation (e.g. martyrdom),⁸³ his argument functions as if this good were objective for each individual and independent of what is variable in their appetites and fears. He writes, for example, that “Reason itself” never changes its end, “which is peace and self-defence”,⁸⁴ and “it can never be that Warre shall preserve life, and Peace destroy it”.⁸⁵ His theory of natural law therefore assumes the good of self-preservation to be invariable for each subject.⁸⁶ Individuals do not forget why they agreed to enter the covenant, and their faculty of reasoning and deliberating about the means to their preservation remains intact after the institution of sovereignty. Hobbes’s argument for obedience requires that subjects retain these capacities: “every violation of Natural Laws consists in false reasoning or in stupidity, when men fail to see what duties towards other men are necessary to their own preservation”.⁸⁷

Natural law and the covenant

Having provided this overview of Hobbes's theory of natural law, I now show how his use of principles from the natural law tradition generates the tension between the right to resist and the duty to obey. First, I look at the institution of sovereignty. In keeping with the non-determinist side of his thinking on natural law, Hobbes concedes that the laws of nature are “contrary to our naturall Passions, that carry us to Partiality, Pride, Revenge, and the like”.⁸⁸ Although people may agree, for example, that theft, murder and adultery are forbidden,⁸⁹ “doubtful points and disputes will arise every day about … whether something that has been done is contrary to law or not”.⁹⁰ According to Hobbes, the private judgement of “good” and “evil” leads to multiple determinations of what is right in specific situations.⁹¹ The human propensity towards disagreement effectively puts paid to any notion that natural law by itself can foster political stability. If individuals cannot trust one another to observe the laws of nature, all they have to fall back upon is their individual strength and prudence.⁹² Hobbes describes this situation as “a warre, as is of every man, against every man”.⁹³ In such a condition, none of the goods of life can be attained with any certainty: the “fundamental law of nature” is thus “to seek Peace, and follow it”.⁹⁴

How precisely are individuals to “seek and follow” this common good? The only way to guarantee peace, he thinks, is to authorise one person (or one assembly) to implement natural law. This is the institution of sovereignty. While a presumption in favour of the legislator’s judgement is consistent with the natural law tradition, Hobbes goes further in holding the very fact of sovereignty to prohibit individuals from relying on their own perception of natural law. Although the natural law forbids murder, theft and adultery, “what is to count as theft on the part of a citizen or as murder or adultery or a wrongful act is to be determined by the civil, not the natural, law”.⁹⁵ Moreover, the sovereign’s interpretation does not have to be morally “correct” to be authoritative and binding upon the subject. Hobbes attempts to exclude from the moral reasoning of subjects any possibility for natural law to be used as a moral criterion for evaluating sovereign commands. As Burgess notes, Hobbes “countenanced no loopholes of this sort: the sovereign’s commands were always valid laws”.⁹⁶ Likewise, for Warrender, the sovereign’s commands “replace within a certain field of public action, any competing accounts of morality … not because the sovereign is particularly wise or perceptive in his judgements” but, rather, because conflicting views require “public settlement … consistent with order”.⁹⁷ Unlike earlier natural law theorists, for whom the authority of sovereign command is not independent of its moral content, for Hobbes the only authoritative interpretation of natural law in civil society is that of the sovereign.

However, this is not the whole story: the universal intelligibility of natural law and its independence from civil law – premises he shares with the tradition – mean we can (and must) agree on the practical requirements of a number of laws of nature without recourse to sovereign adjudication. I have already noted the first two: to seek peace and to follow it (the “fundamental” law of nature), and “to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself”.⁹⁸ Obedience to the sovereign also requires “that men performe their Covenants made”.⁹⁹ This third law is a vital premise in establishing the legitimacy of sovereign power, since natural law commands:

that agreements be kept … And all citizens agree at the very formation of the commonwealth to show obedience to the commands of the holder of sovereign power, i.e. to the civil laws, even before they can be broken.¹⁰⁰

Natural law is central to Hobbes’s argument for obedience: rebellion against the sovereign is prohibited not by the sovereign’s own positive laws, but by the natural law that covenants are performed.¹⁰¹ Hobbes writes: “it is the law which preceded civil law which is violated by the crime of treason; and that is the natural law, by which we are forbidden to break agreements and our pledged faith”.¹⁰² A subject therefore cannot justify disobedience or rebellion through appeal to the natural law because the same law commands that the covenant to obey the sovereign must not be broken. However, Hobbes’s attempt to reduce the obligations of natural law to those of civil law does not exhaust every moral scenario, for it cannot extend beyond the limits of the duty to obey. Notwithstanding the need for a sovereign to interpret natural law, Hobbes nonetheless accords moral precedence to natural law over civil law, in keeping with the tradition; accordingly, his theory explains why the individual has the right to disobey and how they may use their moral judgement to exercise that right.

Natural law and the limits of obedience

Hobbes has claimed that natural law commands obedience to the civil law insofar as the individual has promised allegiance, but the natural law would not enjoin obedience if the subject is commanded to renounce their “Right of Nature”,¹⁰³ since individuals never originally promised anything of the sort. Therefore, although citizens are obliged to obey the sovereign’s commands because it is by their authority that the sovereign rules,¹⁰⁴ there are reasons for a subject rightly to disobey the sovereign. Hobbes writes: “no man in the Institution of Sovereign Power can be supposed to give away the Right of preserving his own body; for the safety whereof all Soveraignty was ordained”.¹⁰⁵ Hobbes extends the right of preservation beyond bodily protection to the freedoms necessary to “live well”.¹⁰⁶ Specifically, we preserve the right to life, the right to resist assault and the imposition of wounds, chains or imprisonment,¹⁰⁷ the right to refuse a sovereign command to kill, wound or maim one’s self,¹⁰⁸ and the right to air, water, motion, food, medicine and freedom of movement.¹⁰⁹ Additionally, we maintain the right not to incriminate ourselves or anyone else “whose loss would embitter one’s own life”.¹¹⁰ One also has the right to disobey any command one deems to be inconsistent with the purpose of sovereignty (e.g. a command to kill the sovereign), even if it is given by the sovereign.¹¹¹

As counterparts¹¹² to these inalienable liberties left to the individual by natural law, Hobbes enumerates four “Totall Excuses” which “taketh away the obligation of the [civil] Law”.¹¹³ These include when “a man is captive, or in the power of the enemy”, or faced with “the terrour of present death” or “destitute of food, or other thing necessary for his life”.¹¹⁴ Answering how subjects are “absolved of their obedience to their sovereign”, Hobbes declares: “The end of Obedience is Protection; which, wheresoever a man seeth it, either in his own, or in anothers sword, Nature applyeth his obedience to it, and his endeavour to maintaine it”.¹¹⁵

In each of these instances of legitimate disobedience, the subject is expected to judge for themselves that they have the freedom to act outside the covenant, and that the law of nature does not bind them to obedience in the case at hand. In On the Citizen, Hobbes states that once a subject has judged the consequences of obedience to be worse than those of disobedience, it is impossible for the person then to obey. He describes it as self-evident “that men’s actions proceed from their wills and their wills from their hopes and fears; hence they willingly break the law, whenever it seems that greater good or lesser evil will come to themselves from breaking it”.¹¹⁶ In cases where a subject is ordered to dishonour or to incriminate herself or to take her own life, according to Hobbes, she would necessarily choose the lesser of two evils.¹¹⁷ And it is the individual – not the sovereign – who deliberates over which course of action will bring the lesser evil. Whether the subject concludes that a particular command should be disobeyed or that they are discharged from obedience altogether, the same reasoning holds. As a matter of natural necessity and of right under natural law, it is the subject who must, and therefore may legitimately, make the judgement.¹¹⁸

The individual, then, judges what the third law of nature (“That men performe their Covenants made”)¹¹⁹ prescribes for her own case. It could be argued, in defence of Hobbes, that such cases are likely to be exceptions that prove the rule of obedience to “normal” sovereign commands. However, as Jaume and Slomp convincingly argue, the individual must ultimately be the judge of “normal” cases precisely to determine whether the exception of disobedience is ever warranted.¹²⁰ Slomp contends that if we follow Schmitt in defining “the sovereign as he who decides on the exception”, then the individual is “sovereign” because ultimately it is he who must decide when to withdraw obedience “in the exceptional case when the state puts his life at risk”. And this decision requires an “assessment of the situation … contingent upon one’s opinions, judgements and beliefs”.¹²¹ Likewise, Jaume finds that the Hobbesian subject is not a “purely passive subject who never judges”, but instead “anyone, by virtue of his natural reason, can be a judge of his own rights”.¹²² Hobbes, therefore, cannot consistently rule out private judgement or the role of private conscience (one’s own “opinion of evidence”)¹²³ in establishing the limits of obedience.

Moreover, Sorell argues that “the agreement to form the commonwealth seems to have escape clauses that make it unclear when the agreement has been kept and when it has been broken”. He suggests that an “extremist’s charter” might be justified on Hobbesian grounds: if any threat “appears real enough to the people concerned, it is unclear that they break the social contract by taking back the responsibility for their protection”.¹²⁴ The same tension arises in the case of punishment. This is another case in which the subject’s “right of nature” may be operative in the presence of the sovereign. If I have covenanted to allow the sovereign to punish his subjects, then how can I retain the right to resist this punishment? Hobbes’s response would be that, as an individual subject, I have authorised the sovereign to use their “right of nature” to punish me, but I cannot have agreed not to resist when faced with punishment.¹²⁵ As Yates puts it: “The retention of the right to resist the sovereign’s infliction of punishment is derived from the inalienability of the right to self-defense”.¹²⁶ Again, the limits of the exercise of this right are drawn by the law of nature and open for the individual to interpret. For example, if I am worried about the cruel punishments the sovereign is inflicting on others, then, as pre-emptive resistance in case I should suffer the same, may I not seek to undermine the sovereign’s capacity to inflict those punishments, e.g. by sabotaging torture instruments or bribing the jailors? In Hobbes’s moral framework, the answer is left ultimately to the individual’s discretion in applying the laws of nature to his own case: i.e. “to endeavour peace, as far as he has hope of obtaining it”¹²⁷ and, when he cannot, to defend himself.

Nonetheless, Hobbes states that a “complete” commonwealth is one “in which no citizen has the Right to use his strength at his own discretion to protect himself”¹²⁸ and that: “Of doctrines that dispose men to sedition, the first, without question, is: that knowledge of good and evil is a matter for individuals”.¹²⁹ Furthermore, a “disease” tending to the dissolution of commonwealths is that “every private man is Judge of Good and Evill actions”.¹³⁰ Despite his perceived need to cure commonwealths from the “disease” of individual judgment proliferation, he nevertheless expects each subject to decide whether the law of nature obliges him to obey the sovereign. It seems, therefore, that the scope Hobbes allows for rightful disobedience is incompatible with his argument that, for the sake of peace, subjects must alienate their individual interpretations of the principles on which their self-preservation depends.

Martel provides a further perspective on the scope for private interpretations of morality. He observes that whatever authority the sovereign possesses is derived from the subjects’ reading of the covenant, and the covenant itself is a rhetorical performance. Hobbes’s explicit distrust of rhetoric then invites the reader to question the authority of Hobbes’s own rhetorical pronouncements in favour of sovereign authority.¹³¹ Leviathan enables the reader “to catch the author [Hobbes] in the act of producing his own textual authority and furthermore, the authority of the sovereign”.¹³² The effect, Martel suggests, is to alert the reader to “their own role and participation in the promulgation of authority”,¹³³ a reading that coheres with Jaume’s observation that “for Hobbes the law in fact requires consent … even if Hobbes avoids the term ‘consent’, as being too favourable to anarchy!”.¹³⁴ Indeed, as Martel puts it, “Hobbes seems to quash or at least overwrite such an authorization of private readings” by subordinating all such readings to public authority.¹³⁵ He suggests “the realization that the sovereign authority is a rhetorical product … would be devastating to that authority”.¹³⁶ For this very reason, Martel argues, Hobbes must conceal his own role in producing the sovereign’s authority “by denouncing both his rhetorical talents and, of course his authority as an author, ceding it to the sovereign itself”.¹³⁷

Martel’s analysis of the rhetorical production of public authority offers additional evidence that the subjects’ obligation to obedience requires their ongoing interpretation of the purpose of the covenant and, consequently, how the moral obligations it generates apply to their own case. It can be concluded that when a subject transfers his “right of judging”¹³⁸ to the sovereign, and his conscience becomes the public conscience, this transfer cannot extend to the subject’s interpretation of the covenant itself. In any given case, a subject may be required to judge whether the sovereign’s “public conscience”¹³⁹ conflicts with the agreement he has entered into for the security of his life. Hobbes therefore cannot make self-preservation depend upon an absolute transfer of the right to interpret the natural law if the extent of subjects’ obedience in any given case is ultimately to be decided by their individual reading of the covenant.

Hobbes’s entanglement in this apparent contradiction is more easily grasped in the context of his continuity with the natural law tradition. Hobbes shared the belief that there is an ultimate good¹⁴⁰ generalisable to all or most individuals (in his theory, self-preservation); this good can be known by everyone and, with rare exceptions, the means to this good are universally accessible to the intellect in the form of precepts for action (the laws of nature). Moreover, the laws of nature are moral laws and, as sources of moral obligation, are superior to the civil laws of the commonwealth. And yet his retention of these principles is at odds with the absolute authority he would transfer to the sovereign to determine the interpretation of natural law. Given the orthodox principles to which he adheres, Hobbes cannot eliminate the possibility that subjects might prefer their own interpretation of natural law to the sovereign’s. Subjects must decide whether their exercise of the “right of nature”, in a particular instance, is permitted by the natural law that prohibits the breaking of covenants. Hobbes’s argument for the moral impermissibility of breaking covenants is made as an appeal to the consciences of subjects. The ultimate interpretation of natural law, on this count, has to lie with the subject, rather than the sovereign. What Hobbes appears to allow is precisely the conflict of moral opinion that he wants at all costs to avoid.

Redeeming Hobbesian resistance?

I can now respond to the interpretations of Sreedhar, May and Steinberger, who argue that Hobbes indeed has a consistent, coherent account of resistance. Sreedhar suggests that a non-contradictory defence of Hobbes’s theory of resistance can be reconstructed without dubious interpretive concessions.¹⁴¹ Sreedhar asks: “If a subject always has the right to act on her own private judgement in cases of justified disobedience, then in what sense has she submitted her judgement to the judgement of the sovereign?”.¹⁴² What is required is a “principled distinction between cases in which Hobbes believes subjects can justifiably disobey and cases in which they cannot”.¹⁴³ She argues this distinction can be made by introducing Joseph Raz’s contrast between “first” and “second” order reasons for action.¹⁴⁴ Following Raz, she explains:

If a person has only first-order reasons, she simply chooses an action based upon her own private judgement of the merits of the circumstances … But, there are cases in which people do not, or should not, act on their own estimation of which first-order reasons are the strongest … In these cases, what Raz calls a “second-order” reason binds them: that is, they have a second-order reason to act for a reason or not.¹⁴⁵

According to Sreedhar, where a “second-order” reason is negative, one has what Raz calls an “exclusionary reason”; that is, “a reason to refrain from acting for a reason”.¹⁴⁶ The directives of an authority are thought to offer “exclusionary reasons” by those who act upon them.¹⁴⁷ This concept allows Sreedhar to argue for a solution to the alleged contradiction: the Hobbesian covenant is not a surrender of judgement but an “agreement to treat the sovereign’s commands as Razian authoritative directives”.¹⁴⁸ In other words, the Hobbesian sovereign gives his subjects exclusionary reasons to obey his commands.¹⁴⁹ Specifically, first-order reasons from private conscience (that is, private judgements of good and evil) are necessarily excluded from deliberation.¹⁵⁰ However, certain first-order reasons, most notably self-defence, are non-excludable. For Sreedhar, therefore, Hobbes is not so much eliminating subjective judgment as quarantining it: judgments over self-defence are retained while moral, ideological or religious are excluded; they continue to exist, privately, but they are no longer allowed to be the basis for legitimate action.

For Sreedhar, therefore, the criterion for justified disobedience is that the subject believes she has a non-excludable reason to disobey. In such a case, the subject “must retain the right to private judgement … since it is up to the subject to judge whether her life is in danger”.¹⁵¹ The subject is therefore permitted to ask of a given sovereign command: “Do I have a nonexcludable reason for disobeying this command?”.¹⁵² A non-excludable reason holds where two criteria are present: (1) obedience would contradict the justification for submitting to the sovereign (i.e. by threatening self-preservation); and (2) “disobedience, even if universal … does not materially reduce the power of the sovereign”¹⁵³ (for example, if a son refuses to kill his father, others may be found to do it). Sreedhar concludes that in the absence of either of these criteria, the subject’s obligation to obey remains intact. The implication is that the sovereign’s interpretation of natural law does not outweigh the subject’s moral judgement, but rather pre-empts it.

Larry May shares Sreedhar’s insistence that the citizen’s non-transferable right to resist is consistent with Hobbes’s theory of sovereignty.¹⁵⁴ May argues that, for Hobbes, while subjects “need not be faithful to particular laws”, they must not intentionally risk harm to the legal system.¹⁵⁵ May distinguishes “mere obedience to law” from “fidelity to law”¹⁵⁶: the latter is based on the “principle that people should not disobey the law if such disobedience would threaten the stability of the system of law … [it is] based on a respect for institutions, not for particular laws”.¹⁵⁷ However, he argues: “Only disobedience that would threaten the legal order itself is ruled out. Short of such a threat … fidelity to law is consistent with disobedience of a particular law to avoid great personal risk”.¹⁵⁸ That is, where “there is a threat to the livelihood or liberty of a citizen by a law of the sovereign (such as when the sovereign puts the citizen’s life at risk)”, disobedience may be justified. But there must be “no intent, by engaging in the act of disobedience, to frustrate overall peace”.¹⁵⁹ May’s defence of Hobbes is grounded in the citizen’s fidelity (or respect) for the legal order. He concludes that if the stability of the legal order is not threatened by disobedience, “then it may be justified to break even valid laws”.¹⁶⁰

May and Sreedhar therefore converge on similar criteria for legitimate disobedience: first, that to disobey a particular command or law would not significantly reduce the sovereign’s power (for example, by undermining the legal system), for to deprive the sovereign of the means to ensure peace would contradict the covenant; and, second, that to obey a given command would be to place one’s life at “great personal risk”. If both conditions hold, then obedience would undermine the subject’s purpose in agreeing to the covenant.

This argument requires the subject to judge whether one or both of these conditions are present. For the subject to decide whether, in Sreedhar’s terms, she has a “non-excludable reason” to disobey would require a judgement on whether the sovereign’s command is consistent with the covenant of obedience into which all subjects have entered. Likewise, to deliberate upon the likely effects on the legal system of disobedience to a particular law, and therefore of the consequences for “overall peace” (as May suggests), is to consider how the covenant constrains the liberty to disobey. But it is worth recalling that, for Hobbes, the moral requirement to respect the covenant is also a law of nature; that is, a precept to which general adherence is necessary for overall peace. If the subject is contemplating resistance to the sovereign, she must apply the law of nature that prohibits the breaking of covenants to the circumstances of her case and decide whether the purpose of the covenant is consistent with disobedience, and thus whether a “non-excludable reason” could apply. There is no question of the subject deferring this judgement to the sovereign, because for the latter to issue any command as sovereign is to assume an authority that stems from the covenant. The subject must therefore judge for herself the scope of her moral requirement to obey, and must therefore make her own interpretation of the covenant authoritative for her own case.

I agree this implication is inescapable if, as Hobbes insists, the individual retains an inalienable right to self-preservation. However, for Hobbes, it is equally true that the sovereign’s ability to secure peace requires that they alone have authority to determine how the precepts of self-preservation (i.e. the laws of nature) apply to particular cases. If an individual is to judge whether it is consistent with the covenant to disobey a sovereign command, then she must apply the law of nature to her own case and judge what it permits her to do; though Hobbes calls the retention of such judgement a “cause of War”: if one man “be admitted to be Judge, the other is to be admitted also; & so the controversie, that is, the cause of War, remains, against the Law of Nature”.¹⁶¹ The subjects cannot, without contradiction, bestow authority upon the sovereign to interpret the covenant that is both unconditional (to ensure peace) and conditional upon the subjects’ lives remaining secure.

Furthermore, the arguments of Sreedhar and May rely upon theoretical distinctions (i.e. Raz’s two orders of reasoning and May’s distinction between obedience and fidelity) that fall outside the scope of Hobbes’s conceptual vocabulary. They are not conceptual resources for reworking Hobbes’s theory in the terms in which he presented it,¹⁶² and this approach therefore risks misrepresenting his intentions. For example, when Hobbes uses the term “obedience”, he usually implies not only a choice to obey particular laws but also a certain moral disposition towards the sovereign’s commands. He states that “the right of Government would be meaningless without obedience”¹⁶³ and “the obligation to civil obedience … is prior to every civil law”.¹⁶⁴ Furthermore, “the citizen who renounces the general pact of obedience is renouncing all the laws together”.¹⁶⁵ Hobbes also writes of natural laws as “qualities that dispose men to peace, and obedience”¹⁶⁶ and elsewhere refers to “the laws of the kingdom of heaven, in which consisteth Christian obedience”.¹⁶⁷ By speaking of obedience as if it were a virtue, and not explicitly distinguishing different levels of obedience,¹⁶⁸ Hobbes arguably forecloses the very distinction by which May introduces the possibility of legitimate disobedience.

Steinberger, with greater consistency with Hobbes’s terminology, presents an alternative attempt to resolve the contradiction. Observing that “the aims of the social contract include the protection not just of life itself but of a happy life, hence of all those things – especially material possessions – that make contentment possible”,¹⁶⁹ he argues that the contract dissolves when it fails to meet the ends it sought to achieve. He writes: “A contract that turns out to undermine, rather than achieve, the goals for which it was created is a contradiction in terms, hence is no contract at all”.¹⁷⁰ It is the breakdown of contract that gives the individual the right to disobey. According to Steinberger, at the very moment of disobedience it is not a state that is being disobeyed but an entity within the state of nature. There is no right to resist a sovereign precisely because at the moment at which our lives are threatened there is no longer a contract and therefore no longer a sovereign. Steinberger adds:

The state must always be obeyed, its authority absolute. But the actual existence of a state can be, and often is, a matter of the most intense dispute, since the terms of the contract can be violated for some and not for others.¹⁷¹

Whereas Sreedhar and May explore the grounds for legitimate disobedience within the state, Steinberger places the disobedient subject outside the state. In both cases, the same objection can be made. Each of these authors seeks to find compatibility between the purpose of the covenant and the reasons for which one might rightly disobey (or resist) the sovereign power. In each case, it must be assumed either that the subject never alienates their right to interpret the purpose of the covenant or that they regain this right when their life is in danger. Where the “terms of the contract” are a “matter of the most intense dispute”¹⁷² (in Steinberger’s terms), there is no third party to whom the subject can refer the judgement.

Although Steinberger adopts a “cost/benefit” reading of Leviathan, in which each person “has to decide whether or not the terms of the social contract are being satisfied … in other words, has to decide if the benefits of obedience outweigh the costs”,¹⁷³ Hobbes does not consistently grant subjects the liberty to judge whether it is right to disobey their sovereign. Although his allowance for a right of self-defence might imply such a liberty, in numerous passages he explicitly denies it. For example, “it is utterly essential to the common peace” that it is never “put before the citizens … that it is licit to resist the sovereign”.¹⁷⁴ Given that he considered this opinion a serious risk to peace, it is scarcely plausible that (on Steinberger’s reading) he meant to permit resistance by pointing out that, at the moment of disobedience, the ruler no longer has sovereign power over that citizen. Again, “in the actual formation of the commonwealth … when we are obligated to obey before we know what orders will be given, then we are obligated to obey universally and in all things”.¹⁷⁵ To be obligated to obey in advance of the command leaves no liberty to disobey upon the performance of a cost/benefit analysis.

Hobbes elaborates the consequences of a case-by-case approach to the question of obedience: if “men are disposed to debate with themselves, and dispute the commands of the Common-wealth; and afterwards to obey, or disobey them, as in their private judgements they shall think fit”, then “the Common-wealth is distracted and Weakened”.¹⁷⁶ This is why, concerning the loss of a subject’s liberty in a commonwealth, “a subject may no more govern his own actions according to his own discretion and judgment … as the present occasions from time to time shall dictate to him”, but must be tied to act according to the will of the sovereign. If men had liberty to do otherwise, “they would not live together in peace an hour”.¹⁷⁷ Given that Hobbes is committed to this position on individual judgement, the arguments of Sreedhar, Steinberger and May do not show how subjects can be justified in opposing the sovereign’s interpretation of the covenant to their own. By reasoning instead from the individual’s purpose in entering the covenant (i.e. the aim of self-preservation), these analyses have not accounted for the possibility of conflict over the right to interpret the principles on which self-preservation depends.

Even if Hobbes did allow subjects the right to decide for themselves when to obey, it would not follow that subjects are released from public authority by the exercise of this right. Steinberger argues: “When the activity of the state fails to achieve or threatens, directly or indirectly, the ends for which it was created … the terms of the contract itself, hence the obligations entailed therein, dissolve”.¹⁷⁸ In this case, for Steinberger, “I find myself plunged back into the condition of mere nature” and the “entity that threatens me is, at best, a dominant power in the state of nature, something to which I have no obligation whatsoever”.¹⁷⁹ However, for Hobbes, the contract cannot be abrogated or violated by anything the sovereign (or state, acting in the person of the sovereign) does or fails to do, because the sovereign is not a party to the contract. The covenant is “onely of one to another”¹⁸⁰ and not between the sovereign and any private person. Consequently, “there can happen no breach of Covenant on the part of the Soveraigne; and consequently none of his Subjects, by any pretence of forfeiture, can be freed from his Subjection”.¹⁸¹ Every subject is author of everything the sovereign commands, and therefore “whatsoever is commanded by the Soveraign Power, is as to the Subject … justified by the command”.¹⁸² The sovereign breaches no contract by commanding what the subject cannot perform. Under the terms of the contract, the action commanded may simply be one the subject is not obligated to undertake. For example, “if I am told to kill myself, I have no obligation to do so … I am not refusing to do anything I have agreed to do”.¹⁸³ Moreover, where the subject’s reason for refusing a sovereign command is to preserve the sovereign’s power (for example, to refuse to kill the sovereign), it would be self-defeating for the subject to be forced back into the state of nature by this disobedient act.

It follows that the sovereign does not cease to hold authority over a disobedient subject and may legitimately punish them, if, following Yates, punishment for Hobbes always assumes a juridical relationship between subject and sovereign.¹⁸⁴ Hobbes writes: “if he that attempteth to depose his Soveraign, be killed, or punished by him for such attempt, he is author of his own punishment, as being by the Institution, Author of all his Soveraign shall do”.¹⁸⁵ Hobbes later makes an exception for “Revolted Subjects” or “declared Rebels” who deliberately deny the authority of the sovereign and therefore suffer as enemies at war rather than according to punishments in law.¹⁸⁶ However, in asking the question of whether rebellion can ever be judged legitimate (as Steinberger and Sreedhar argue that it can), we are again confronted with the difficulty that sovereign and subject have competing rights to interpret the covenant, and each must apply the law of nature to their own case. As I have shown, Hobbes regards it as a necessary condition for peace that such a judgement cannot be retained by individual subjects. The sovereign alone has authority to determine the meaning of the laws of nature in particular cases, including the law prohibiting the breaking of covenants.

Against these various attempts to find consistency within Hobbes’s affirmation of an individual’s right to resist the sovereign, I therefore argue that an inescapable tension remains. It is problematic to suggest that the subject retains the right to judge whether the conditions for legitimate disobedience, enumerated by Sreedhar, May and Steinberger, are consistent with the covenant in her own case. On the one hand, Hobbes appeals to the laws of nature to justify the alienation of this judgement to the sovereign. On the other, it seems this position cannot be reconciled with his own commitment to natural law theory.

Conclusion

Hobbes’s account of the individual’s right to resist sovereign authority is nuanced. His allowance for several cases when sovereign command falls outside the terms of the covenant, I contend, fails to rescue him from the long-held accusation that his system is based on mutually contradictory grounds. To suggest that some of our resistance rights are transferred whilst others are quarantined, as Sreedhar does, is to underplay the consequences of a multitude of individuals perennially presiding over the question of whether the sovereign is respecting their right to a good life. Hobbes describes the private judgement of morality as inimical to the preservation of peace, and therefore restricts the right to judge such matters to the sovereign alone. Likewise, to adopt May’s position that it is the stability of the legal system, rather than the office of the sovereign, which Hobbes ultimately upholds, is to overlook Hobbes’s argument for reserving to the sovereign the exclusive authority to judge any issue that pertains to the peace of the commonwealth. If a citizen’s intention that disobedience would not undermine the legal system were itself to exonerate the breaking of valid laws, then one can object on Hobbesian grounds that “seeing every man is presumed to do all things in order to his own benefit, no man is a fit Arbitrator in his own cause”.¹⁸⁷

Finally, Steinberger’s argument for a case-by-case approach to the question of whether one is subject to sovereign power or in the state of nature does not account for Hobbes’s insistence that individuals must alienate their interpretation of the law of nature to the sovereign, and with it the right to decide the question of when they should obey and when they may not. The general principles upon which all moral questions ought to be decided can be grasped by everyone, but no one can be expected to apply these principles accurately and impartially in a case that concerns her own self. To allow the individual unfettered moral discretion would inevitably result in a breakdown of peace. Hobbes implies that individuals must recognise the grave danger to the preservation of their lives if their actions weaken the sovereign’s ability to act as the final arbiter of moral conflict. In the state of nature, he argues, there is no definitive settlement of moral issues.

However, Hobbes’s argument evidently requires the exercise of subjects’ moral reasoning. He presents his argument as a moral appeal to the consciences of subjects. His intention appears to be to warn individuals away from “traynes of thought” that he believed were destructive to peace. Individuals must therefore take responsibility for acting on a sound understanding of the laws of nature and conform their moral decisions to the necessary conditions of peace. For this reason, Hobbes cannot consistently advocate the substitution of the sovereign’s moral judgement and conscience for the private conscience of every subject: the covenant requires an ongoing moral commitment on the part of the subject not to usurp or disobey the sovereign, unless she cannot conceive how to live a tolerable life without disobedience, in which case she (the subject) will judge that her commitment to the covenant does not bind her in the case at hand. Hobbes indeed allows the subject a residual and inalienable right to preserve a bearable life, but its exercise remains a moral judgement on the part of the subject.

In conclusion, I argue Hobbes’s inheritance of key tenets of natural law theory ties him to the belief in a moral standard which, even after the covenant is entered, remains external to the sovereign and accessible to all individuals who maintain their ability to reason. Hobbes, as a moralist, is much closer to the orthodox natural law tradition than either his “absolutist” political rhetoric or his determinist psychology appears to allow. His argument for the concentration of moral judgement in the sovereign is crafted from intellectual materials taken, at least in part, from a tradition in which the sovereign may be judged by moral principles comprehensible to all. It is for this reason that his attempt to place the interpretation of the law of nature beyond the reach of private individuals is irreconcilable with the retention of inalienable rights. His theory of rightful resistance to the sovereign cannot be rendered consistent with the limited scope he intends for it. Though it may be a “dangerous” cause of “rebellion”, he cannot consistently deny “that it is up to private men to determine whether the commands of Kings are just or unjust, and that his commands may rightly be discussed before they are carried out, and in fact ought to be discussed”.¹⁸⁸

Acknowledgements

The author would like to thank Stephen Dunne for collaborating on the project in its earlier stages, and Edzia Carvalho, Harro Höpfl, Johan Olsthoorn, Susanne Sreedhar, Richard Whatmore and Quentin Skinner for helpful feedback on the argument.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Samuel Mansell

Samuel Mansell is Lecturer in Business Ethics at the University of St Andrews, where he joined the School of Management in 2010. Prior to this, he completed a Ph.D. in the area of business ethics and political philosophy at Essex Business School (under the supervision of Steffen Böhm and Harro Höpfl), where he worked for two years as a Teaching Fellow. Since joining St Andrews, he has served as Pro Dean (Undergraduate) for Arts & Divinity from 2015 to 2017. His research draws on the history of moral, political and legal philosophy to rethink the purpose of business corporations. His monograph Capitalism, Corporations and the Social Contract (Cambridge University Press, 2013) examined the application of social contract theory to business ethics. He is currently researching the idea of the corporate person, and the source of its authority, in medieval and early modern jurisprudence (particularly in the work of Hobbes), and recently led an interdisciplinary collaboration (with Avia Pasternak, David Gindis and John Ferguson) for a special issue of Journal of Business Ethics on “Rethinking Corporate Agency in Business, Philosophy and Law”.

Notes

1 One exception is Bobbio, Thomas Hobbes, 117–18.

2 Steinberger, “Hobbesian Resistance”, 857.

3 Ibid.,856.

4 Sreedhar, Hobbes on Resistance, 89.

5 “Right” has at least three distinct meanings for Hobbes. When used as a noun (“a right” or jus), it refers to a faculty of the individual subject: the liberty or freedom left to them by civil law. In Chapter 14 of Leviathan, it is defined initially as “liberty to do, or forebear” and then in Chapter 26 as “that Liberty which the Civil Law leaves us”. However, when used as an adjective (what is “right” or done “by right”), it typically has the objective sense of “right” as opposed to “wrong”, translated in Chapter 13 as “iusti” and “injusti”, thereby equating right with justice. This meaning is consistent with the former definition because Hobbes defines “justice” as the performance of covenant under the power of the commonwealth. In Hobbes’s vocabulary, therefore, to act on a “right” (jus) is necessarily “by right” (jure) and done “rightly” (juste). It is the exercise of whatever “blameless liberty of using our own power and ability” is allowed by the law of the commonwealth. Finally, Hobbes occasionally uses “right” as an adjective for “reason” (“recta ratio”) to denote correctness in thinking. Hobbes, The Elements of Law, XIV.6, 79; Hobbes, Leviathan, V, 66–7, XIII, 196–7, XIV, 198–219, XXVI, 450–1. For Hobbes on “subjective right”, see Brett, Liberty, Right and Nature, 205–34.

6 Sreedhar, Hobbes on Resistance, 4.

7 May, Limiting Leviathan, 131; Sreedhar, Hobbes on Resistance, 104.

8 Hampton, Hobbes.

9 Sreedhar, Hobbes on Resistance, 3.

10 Gauthier, Logic of the Leviathan.

11 Hobbes, Leviathan, XXIX, 502.

12 Jaume, “Hobbes and Liberalism”, 210. Hobbes writes that “in case a great many men together, have already resisted the Sovereign Power unjustly … for which every one of them expecteth death, whether have they not the Liberty then to joyn together, and assist, and defend one another?”; Hobbes, Leviathan, XXI, 340.

13 Hobbes, On the Citizen, III.25, 53.

14 Hobbes, Leviathan, XV, 242.

15 Hobbes enumerates a total of twenty “laws of nature” in On the Citizen and Leviathan, but often writes of them collectively as the “law of nature”.

16 Hobbes, Leviathan, XIV, 198; Hobbes, On the Citizen, II.1, 33–4 ; Hobbes, Elementa Philosophica De Cive, II.1, 22.

17 Hobbes, On the Citizen, II.1, 33; Hobbes, Leviathan, XIV, 198.

18 Hobbes, Leviathan, XIV, 198.

19 My treatment of Hobbes’s relationship to the natural law tradition is not intended to be exhaustive but rather to elucidate those points that pertain to the problem of resistance and sovereign authority. More comprehensive analyses, especially of the points on which Hobbes departs from the tradition, can be found in Burgess and Zagorin. Burgess, “On Hobbesian Resistance Theory”; Zagorin, “Hobbes as a Theorist of Natural Law”.

20 Burgess, “On Hobbesian Resistance Theory”, 77.

21 Martel, Subverting the Leviathan, 165–6.

22 Laing and Wilcox, “Early Modern”, 170–1.

23 Burgess, “On Hobbesian Resistance Theory”, 79.

24 Aquinas, The Summa Theologica, IaIIæ, Q.94.2, 1009.

25 Ibid.

26 Aquinas, The Summa Theologica, IaIIæ, Q.91.2, 997, Q.94.4, 1011.

27 For where these neo-Thomist writers disagreed with Aquinas on natural law, see Brett, Changes of State, 74.

28 Suárez, “De Legibus”, II.VI.17, 188. See Brett, Changes of State, 75; Finnis, Natural Law & Natural Rights, 45.

29 Suárez, “De Legibus”, II.VI.17, 188, emphasis added.

30 Grotius, “On the Law of War and Peace”, 197.

31 Aquinas, The Summa Theologica, IaIIæ, Q.95.2, 1014.

32 Ibid., Q.96.4, 1020.

33 Höpfl, Jesuit Political Thought, 270.

34 Ibid., 273.

35 Aquinas, The Summa Theologica, IaIIæ, Q.94.6, 1013.

36 Skinner, The Foundations: Volume Two, 160.

37 Höpfl, Jesuit Political Thought, 273–4.

38 Cf. Copleston, A History of Philosophy: Volume 3, 398; Skinner, The Foundations: Volume Two, 177–8; Höpfl, Jesuit Political Thought, 256–7, 274.

39 Höpfl, Jesuit Political Thought, 296.

40 Hobbes, Leviathan, VI, 78.

41 Ibid.

42 Hobbes, Leviathan, III, 38.

43 Ibid., 38–40.

44 Ibid., I, 22.

45 Ibid., VI, 90–2.

46 Ibid., XXI, 326.

47 Springborg, “Liberty Exposed”, 142.

48 Ibid., 145.

49 Ibid., 146.

50 Hobbes has been presented as a “classical compatibilist” on free will and determinism: “The freedom to do otherwise does not require that you are able to act contrary to your strongest motivation but simply that your action be dependent on your strongest motivation … an agent self-determines her ϕϕ-ing just in case ϕϕ is caused by her strongest desires or preferences at the time of action”. Likewise, Gert points to Hobbes’s “compatibilist view that ‘Liberty and necessity are consistent … in the actions which men voluntarily do’”. However, if actions (i.e. the will) are caused by desires which reduce to the motion of physical bodies in a “continual chain”, it is still unclear on the “compatibilist” account where in this process, the individual can exercise moral choice. O’Connor and Franklin, “Free Will”; Gert, “Hobbes’s Psychology”, 172; Hobbes, Leviathan, XXI, 326.

51 Hobbes, Leviathan, V, 66.

52 Ibid.

53 Ibid., 76.

54 Hobbes, On the Citizen, III.25, 53.

55 Ibid., III.30, 55.

56 Ibid., XIV.14, 161.

57 Hobbes, The Elements of Law, XVII.14, 98.

58 Hobbes, Leviathan, XXVI, 442.

59 Hobbes, The Elements of Law, XVII.14, 98.

60 Hobbes, Leviathan, XXVII, 454.

61 Hobbes, On the Citizen, XIV.16, 162.

62 Burgess, “On Hobbesian Resistance Theory”, 79.

63 Springborg persuasively suggests that Hobbes is caught between rival intellectual traditions: “It is as if he is not yet willing to give up the scholastic (Platonist, Aristotelian) understanding of judgement as produced by the faculty of the will, in favour of the ‘materialist’ (Stoic, Sceptic and Epicurean) notion whereby judgement is the last movement of the mind”. Springborg, ‘Liberty Exposed”, 148.

64 Hobbes, On the Citizen, III.26, 53.

65 Ibid., IV.1, 58.

66 Ibid., XIV.4, 156.

67 Hobbes, The Elements of Law, XXIX.10, 182.

68 Zagorin, Hobbes and the Law of Nature, 35.

69 Burgess, “On Hobbesian Resistance Theory”, 81. In certain passages, Hobbes implies that the laws of nature are identical to “reason” itself and innate in human beings: e.g. “God Almighty hath given reason to a man to be a light unto him” and “Reason is the law of nature”. However, a position more consistent with Hobbes’s repeated admonition not to destroy one’s reasoning ability is that the capacity for rational thought is granted to (almost) all human beings by God, and the laws of nature are, not reason itself, but precepts “found out by Reason”, which is why Hobbes emphasises our duty to preserve this ability. I therefore agree with Zagorin that natural laws are not known to human beings “because they are engraved by nature or God in their minds and hearts” but, rather, because they “are the conclusion of a chain of reasoning” that follows Hobbes’s empirical description of human nature. Hobbes, The Elements of Law, XIX.12, 102–3, XXIX.9, 181; Hobbes, Leviathan, XIV, 198; Zagorin, “Hobbes as a Theorist of Natural Law”, 246.

70 Hobbes, Leviathan, XV, 240. Hobbes later makes certain allowances, excusing “only children, and madmen … from offences against the law natural”; Hobbes, Leviathan, XXVII, 468.

71 Hobbes, Leviathan, XXVIII, 492.

72 Hobbes, On the Citizen, XIII.4, 144.

73 Hobbes, Leviathan, XV, 240.

74 Hobbes, On the Citizen, III.29, 55.

75 Burgess, “On Hobbesian Resistance Theory”, 82.

76 Warrender, “Hobbes’s Conception of Morality”, 440.

77 Ibid., 441.

78 Ibid.

79 Zagorin, “Hobbes as a Theorist of Natural Law”, 253.

80 Hobbes, On the Citizen, II, 32.

81 Hobbes, Leviathan, VI, 80. The same phrase appears in Hobbes, The Elements of Law, VII.3, 44 and Hobbes, On the Citizen, III.31, 55.

82 Hobbes, Leviathan, XIV, 198.

83 Hobbes, On the Citizen, II. 2, 34. Hobbes offers two exceptions to the “necessity” of self-preservation: the obligation to risk one’s life in war when the defence of the commonwealth requires “the help of all that are able to bear Arms”, and the case of martyrdom where “a man be content, without resistance to lay down his life, rather than to obey the commands of an infidel”. Self-preservation is nonetheless fundamental to his definitions of the law of nature and the right of nature. Hobbes, Leviathan, XXI, 340, XIV, 198; Hobbes, Elements of Law, XXV, 154.

84 Hobbes, On the Citizen, III.29, 54.

85 Hobbes, Leviathan, XV, 240.

86 Despite the claim that individual self-preservation is a “necessity of nature”, it is not the “Summum Bonum” in a natural hierarchy of goods, for then there could be no exceptions. Natural laws are precepts that must be followed insofar as one aims to preserve life and avoid death. As Sorell puts it, the laws of nature do not “command independently of any empirical or pathological appetite or aversion … [They] only motivate as means of self-preservation if there is a widespread natural aversion to death and widespread natural appetite to go on living”. Hobbes, Leviathan, XI, 150; Sorell, “Hobbes’s Moral Philosophy”, 132.

87 Hobbes, On the Citizen, II.1, 33–34.

88 Hobbes, Leviathan, XVII, 254. The context is Hobbes’s explanation of the causes of a commonwealth: i.e. security is not to be had from the laws of nature alone and so men should agree to be directed by one judgement.

89 Hobbes, On the Citizen, VI.16, 86.

90 Ibid., III.20, 51.

91 This point appears at precisely the same point in his argument (before he turns to the generation of the commonwealth, and after his enumeration of the laws of nature) in The Elements of Law, On the Citizen and Leviathan. Evidently, he considered it crucial to the transition from an account of the laws of nature to the necessity of government. Hobbes, The Elements of Law, VIII.14, 98; Hobbes, On the Citizen, III.31, 55; Hobbes, Leviathan XV, 242.

92 Hobbes, Leviathan, XIII, 188–90.

93 Ibid., 192.

94 Ibid., XIV, 200.

95 Hobbes, On the Citizen, VI.16, 86.

96 Burgess, “On Hobbesian Resistance Theory,” 82.

97 Warrender, “Hobbes’s Conception of Morality”, 440.

98 Hobbes, Leviathan, XIV, 200. Malcolm notes that in the English Leviathan, this passage is preceded by the words: “as farre-forth, as …  he shall think it necessary”. In the Latin translation, Hobbes replaces them with “‘whenever provision is being made for peace and his own defence’, thus eliminating that aspect of the law that might appear to make its implementation a matter of degree”; Malcolm, “From the English Leviathan”, 185.

99 Hobbes, Leviathan, XV, 220.

100 Hobbes, On the Citizen, XIV.9, 158. Pactum is translated here as “agreement”, though Hobbes’s English term is “covenant”. He may have been influenced in his choice of term by the political context: it had been claimed in the 1620s and 1630s that only in cases of necessity could the king raise extra-parliamentary taxes without the consent of his subjects. However, Hobbes’s “analysis of covenanting” established “the crucial doctrine that the king can always justly take his subjects’ possessions even without their consent”; Hobbes, Leviathan, XXVI, 418; Sommerville, “Lofty Science”, 257.

101 Hobbes, On the Citizen, XIV.23, 166.

102 Ibid.

103 The “Right of Nature” is defined as “the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own Judgement, and Reason, hee shall conceive as to be the aptest means thereunto”; Hobbes, Leviathan, XIV, 198.

104 Hobbes, Leviathan, XXII, 356.

105 Ibid., 454.

106 Ibid., XV, 234. In On the Citizen, Hobbes refers to “all things necessary for life”, though in the English Leviathan he is more specific, prescribing rights to all things “without which a man cannot live, or not live well”. Hobbes then appears to have changed his mind about the words “live well”: in the Latin Leviathan, they are dropped. He never offers a definitive list of inalienable rights, instead providing lists of examples without which, in his view, a man cannot live. The fullest account is in Hobbes, Leviathan, Chapter XXI, 336–46. Hobbes, On the Citizen, III.14, 50; Hobbes, Leviathan, XV, 234; Malcolm, “From the English Leviathan”, 185.

107 Hobbes, Leviathan, XIV, 202.

108 Ibid., XXI, 336.

109 Ibid. XV, 234.

110 Hobbes, On the Citizen, II.19, 40. In Leviathan: “by whose Condemnation a man falls into misery”; Hobbes, Leviathan, XIV, 214.

111 Hobbes, Leviathan, XXVII, 470. Malcolm suggests this point reflects Hobbes’s concern with certain negotiations of Charles I between 1646 and 1648, on the question of whether control of the militia should be handed to Parliament and episcopacy abolished in England to ensure the support of the Scots. Malcolm, “From the English Leviathan”, 26–9.

112 Carmichael, “Hobbes on Natural Right”, 7.

113 Hobbes, Leviathan, XXVII, 468.

114 Ibid.

115 Ibid., XXI, 344. In “A Review, and Conclusion”, Hobbes adds that the obligation of a subject to a sovereign lapses “when the means of his life is within the Guards and Garrisons of the Enemy; for it is then, that he hath no longer Protection from him, but is protected by the adverse party”. According to Sommerville, “there were special reasons for emphasizing it in 1651. The republican government that had executed and succeeded Charles I was concerned about the loyalty of the population … . so in 1650 it required adult males to take an Engagement promising allegiance to the new regime”. Hobbes, Leviathan: Volume 3, 1134; Sommerville, “Lofty Science”, 263.

116 Hobbes, On the Citizen, V.1, 69.

117 Ibid., XI.11, 80.

118 In accordance with the definitions cited above, I understand the “right of nature” to be the liberty left to a person by the “law of nature”; that is, the freedom to use his own power for the preservation of his life within the limits of a law that prohibits him from doing anything destructive of his life. Hobbes, Leviathan, XIV, 198.

119 Hobbes, Leviathan, XV, 220.

120 Jaume, “Hobbes and Liberalism”, 209; Slomp, “The Liberal Slip”, 364–5.

121 Slomp, “The Liberal Slip”, 364–5.

122 Jaume, “Hobbes and Liberalism”, 208.

123 Hobbes, The Elements of Law, XI.8, 42.

124 Sorell, “Hobbes’s Moral Philosophy”, 142–3.

125 Hobbes, Leviathan, XXVIII, 462.

126 Yates, “The Right to Punish”, 240. Yates’s point is that the right to defend oneself does not enter society “in order to be held against the sovereign”. He argues convincingly that the right to punish is not identical to the sovereign’s “right of nature” (or right of war) because the latter lies outside the scope of public law, whereas the sovereign and criminal remain in a juridical relationship. Instead, the “natural right to violence of the person (or persons) who holds the office of sovereignty is laundered … through a process of legitimation based on the authorization of that violence”. The more traditional view is given by Hüning: “Hobbes established the right to punish on the renunciation of the right to all things”, i.e. “the sovereign’s power of punishment is derived from the fact that, after all individuals have renounced their natural liberty, he is the last and only holder of the right to all things”. Yates, “The Right to Punish”, 247; Hüning, “Hobbes on the Right to Punish”, 231–2.

127 Hobbes, Leviathan, XIV, 200 (emphasis added).

128 Hobbes, On the Citizen, VI.13, 81–2.

129 Ibid., XII.1, 131–2.

130 Hobbes, Leviathan, XXIX, 502.

131 Martel, Subverting the Leviathan, 23.

132 Ibid., 38.

133 Ibid.

134 Jaume, “Hobbes and Liberalism”, 208.

135 Martel, Subverting the Leviathan, 43.

136 Ibid., 46.

137 Ibid.

138 Hobbes, The Elements of Law, XXV.12, 153.

139 Hobbes, Leviathan, XXIX, 502.

140 Burgess describes it as the individual’s “ultimate” or “real” self-interest. Burgess, “On Hobbesian Resistance Theory”, 79.

141 Sreedhar, Hobbes on Resistance, 131.

142 Ibid., 103.

143 Ibid., 107.

144 Raz, Practical Reason and Norms, 37–45.

145 Sreedhar, Hobbes on Resistance, 108–9.

146 Ibid., 109.

147 Ibid., 113.

148 Ibid., 114.

149 Ibid.

150 Sreedhar, Hobbes on Resistance, 128–9.

151 Ibid., 118.

152 Ibid., 120.

153 Ibid., 127.

154 May, Limiting Leviathan, 128.

155 Ibid., 129.

156 Ibid., 132.

157 Ibid., 134.

158 Ibid., 133.

159 Ibid., 136.

160 Ibid., 134.

161 Hobbes, Leviathan, XV, 238.

162 I thank an anonymous reviewer for suggesting this point.

163 Hobbes, On the Citizen, VI.13, 82.

164 Ibid., XIV.21, 166.

165 Ibid., XIV.20, 165.

166 Hobbes, Leviathan, XXVI.4, 418.

167 Hobbes, The Elements of Law, XXV.10, 151.

168 At least, this is true in the context of obedience to the sovereign. Hobbes calls it “SIMPLE obedience, because it is the greatest obedience that can be given”; Hobbes, On the Citizen, VI.13, 82.

169 Steinberger, “Hobbesian Resistance”, 858.

170 Ibid., 859.

171 Ibid., 861.

172 Ibid.

173 Ibid., 864.

174 Hobbes, On the Citizen, VI.11, 80.

175 Ibid., XIV.10, 159.

176 Hobbes, Leviathan, XXIX, 502.

177 Hobbes, The Elements of Law, XXIV.2, 136–7.

178 Steinberger, “Hobbesian Resistance”, 859.

179 Ibid., 861.

180 Hobbes, Leviathan, XVIII, 266.

181 Ibid.

182 Hobbes, Leviathan, XXII, 356.

183 Hobbes, On the Citizen, VI.13, 82–3.

184 Yates, “The Right to Punish”, 246.

185 Hobbes, Leviathan, XVIII, 264–6. That Hobbes writes repeatedly of “his sovereign” implies the individual remains subject to public authority and is not (necessarily) at war with an entity they no longer recognise to be a state.

186 Hobbes, Leviathan, XXVIII, 486, 494.

187 Ibid., XV, 238.

188 Hobbes, On the Citizen, “Preface to the Readers”, 8.