Duty Without Obligation

In: Hobbes Studies
Author: S.A. Lloyd 1
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There is ongoing scholarly debate over the role that Hobbes’s laws of nature play in grounding the moral requirement that subjects obey the government under which they live. This essay demonstrates how the laws of nature, when understood as natural duties, may directly ground a moral duty to obey one’s sovereign without positing that subjects have undertaken any covenant of subjection. Such a grounding avoids the problems that attend accounts that depend on tacit covenant and coerced covenant. The essay describes the advantages of a natural duty account of the laws of nature over accounts that regard those laws as contractual obligations entered through voluntary acts, or as legal obligations to treat the natural laws as literal laws legislated by a sovereign God.

Abstract

There is ongoing scholarly debate over the role that Hobbes’s laws of nature play in grounding the moral requirement that subjects obey the government under which they live. This essay demonstrates how the laws of nature, when understood as natural duties, may directly ground a moral duty to obey one’s sovereign without positing that subjects have undertaken any covenant of subjection. Such a grounding avoids the problems that attend accounts that depend on tacit covenant and coerced covenant. The essay describes the advantages of a natural duty account of the laws of nature over accounts that regard those laws as contractual obligations entered through voluntary acts, or as legal obligations to treat the natural laws as literal laws legislated by a sovereign God.

We students of Hobbes have long puzzled over the status and role of his laws of nature in his political system. If they are mere precepts of prudence, will that not make their demand that we undertake a covenant of political obligation, and keep our covenant, morally optional? If they command undertaking political obligation, would not they have to be the literal laws of a God to whom our epistemic relationship is too tenuous to meet Hobbes’s scientific aspirations? In this paper, I will argue that Hobbes’s laws of nature are best understood as natural duties. I will indicate how the laws of nature may directly ground a duty to obey one’s sovereign without an intermediate covenant of subjection, and will explain the advantages of a natural duty account over accounts that regard the laws of nature as either contractual or legal obligations.

1 Natural Law Imposes a Natural Duty on Every Standard Human Being

It is clear that Hobbes thinks of the natural laws as having some sort of moral character. Hobbes consistently treats the natural laws as moral laws, the dispositions to observe them as moral virtues, and dispositions to neglect them as moral vices. Hobbes calls the science of the laws of nature the “true moral philosophy”.1 The natural laws concern those of a man’s actions that may redound to the benefit or harm of his neighbor.2 Could they be duties rather than obligations? Hobbes does not explicitly distinguish duties from obligations. He uses the specific term “natural duties” to describe the laws of nature when he writes that he is considering the “dictates of natural reason; which laws concern… the natural duties of one man to another”. 3 Determining whether the natural laws are most accurately understood as natural duties as opposed to contractual or legal obligations depends, not on the words Hobbes uses, but on the content of the concepts he employs.

What distinguishes a natural duty from an obligation is that it makes a claim on a person regardless of her voluntary undertakings. The acid test separating natural duties from obligations is whether “I never promised that” counts as a defense. If it does count as a defense, vindicating the accused of moral wrongdoing, then the violation is not of a natural duty. Thus, if “I never promised to have a monogamous relationship” counts as defense against a charge of infidelity, monogamy will be not a natural duty but, at best a contractual obligation pertaining only to those who have made certain sorts of agreements, or undertaken certain roles which require monogamy as an element of the role (for instance the role of wife in a traditional Victorian marriage). Conversely, if “I never promised not to” fails to vindicate one of moral wrongdoing, as is the case with claim “But I never promised not to torture and kill innocent people for fun”, the violation is of a natural duty. If we were subject to legitimate moral criticism only when we act contrary to agreements or promises we have made, we would have only obligations and no natural duties. Universal applicability is characteristic of natural duties.4

The question then, is whether Hobbes thinks that one’s vulnerability to moral condemnation for violating the laws of nature depends on whether or not the individual has agreed to observe those laws. Is a person liable to a charge of ingratitude, say, only if she has antecedently agreed to be grateful to her benefactors? Can she dispense with a charge of injustice in breaking her valid covenant by explaining that she never agreed to keep her covenants? It seems not.

Hobbes’s natural law prohibitions on wanton cruelty, injustice, ingratitude, iniquity and arrogance do not apply only to those individuals who have promised, entered into an agreement, or covenanted to refrain from actions belonging to those types. When Hobbes defines an unjust man, his definition does not consider whether the man has agreed to behave justly, but simply whether he takes care to observe justice in his dealings with others;5 yet if justice were an obligation rather than a natural duty, that consideration would be essential to the definition of the just or unjust man. Hobbes treats the natural laws as making moral claims on all who enjoy the use of reason, not just on the subset of them who have promised to observe those laws. All rationally competent persons are expected to know what the laws of nature require—at least their most basic common requirement that we not behave in ways we will not permit others to behave, or behave in ways we would condemn in them. “Ignorance of the law of nature excuseth no man, because every man that hath attained to the use of reason is supposed to know, he ought not to do to another what he would not have done to himself. Therefore… if he do anything contrary to that law, it is a crime.”6 All rationally competent persons may be morally criticized for intentionally violating those requirements of modesty, equity, keeping faith, mercy, and the rest. This strongly suggests that the natural laws function as natural duties.

If natural laws are not natural duties, but only legal obligations for subjects who have covenanted to obey a God who issues those laws and punishes disobedience to them in an afterlife—call this the Penal God (pg)—those who do not accept pg should be subject neither to moral blame nor moral praise. Yet Hobbes morally assesses four groups who do not accept pg: savages, heathens, atheists, and infidel sovereigns. Hobbes offers modest praise for the morals of the “savages” of America, suggesting both that they grasp moral principles, and that their practice is an appropriate object of moral assessment, which it would not be were natural laws not applicable to them as non-believers in pg. He writes, “It was not possible but that there should have been some general truths found out by reasoning, as ancient almost as language itself. The Savages of America are not without some good moral sentences”.7 “Good moral sentences” must refer to principles like the natural laws (general truths found out by reasoning), or to sound conclusions resulting from applications of them, or else Hobbes would not view them as good.

The textual evidence that Hobbes applied moral assessment to non-believers in pg is even clearer in his remarks about ancient pagans. He writes, “for ought I have observed in history, and other writings of the heathens, Greek and Latin, that those heathens were not at all behind us in point of virtue and moral duties”.8 Because virtues are dispositions to perform the duties imposed by natural law, it is reasonable to conclude that Hobbes thought the natural laws applied to those heathens, that they grasped that fact, and that they did at least as well as his contemporaries had done in conforming their behavior to them.9

Further, atheists (whom Hobbes treats for obvious reasons as a special case) are not exempted from the natural laws, as they would have to be were it true that those laws are mere obligations undertaken by pg-believers rather than universal natural duties. Hobbes takes tremendous heat for his position that atheism, while foolish, is not unjust.10 “Unbelief is” he says, “a rejection of all [of God’s laws] except the law natural”.11 Atheists too are bound by natural law, and properly subject to moral criticism. “Ignorance of the law of nature excuseth no man,”12 including the atheist; but one can only be excused or not excused from a requirement that makes a legitimate claim on oneself. Hobbes bends over backward to reassure his critics that he is not letting atheists off the hook too easily. They are definitely guilty of something. But they aren’t guilty of injustice, which entails that they have broken no covenant (for injustice is the not keeping of covenant). This means that they have broken no covenant to take natural laws as literal laws. If the claim of natural law on them depended on their having undertaken such a covenant, and they did not, then the fact upon which Hobbes insists, namely that they are bound by the natural laws, entails that the binding force of natural law cannot depend on any covenant to obey pg.13

Additionally, the natural laws bind all sovereigns, including sovereigns who do not believe in pg, in their treatment of their subjects, and also in their treatment of other nations and peoples. Sovereigns by institution or inheritance have no contractual obligations to their own subjects, but Hobbes insists that they have a duty under natural law to secure the safety, commodious living and harmless liberty of their subjects, intentional violation of which is iniquitous. Sovereigns are required under natural law to avoid unnecessary wars, and Hobbes says that the natural laws are the law of nations, providing norms of conduct to regulate international interactions and the treatment of foreign peoples by sovereigns even when they have made no prior treaties (covenants) with other heads of state.14 Hobbes never suggests that these laws bind only those sovereigns who believe in or have undertaken a contractual obligation to obey pg.

When we consider how Hobbes speaks of the natural laws as involving moral virtues, of their universal scope and inescapable force, and find that he treats them as binding pagans, savages, atheists, contractually-unlimited sovereigns, and generally, non-believers of all stripes, as well as his Christian audience, we see that the natural laws do in fact operate as natural duties in Hobbes’s system. He seldom used the term, but he deployed the concept. We may suppose that Hobbes speaks of natural duties in terms of natural laws because natural law discourse was a familiar currency for speaking of basic moral norms. In the words of Norberto Bobbio, “the ideological import of natural law theory was at the time very vigorous. Hobbes therefore thought that the best way to found civil power was to show that the obligation to obey the sovereign was a duty derived from a law of nature”15 and that “Natural law is for him, as for other natural law theorists, identical with the moral law.”16 Hobbes himself asserts “all writers do agree, that the natural law is the same with the moral… [and commands] also good manners, or the practice of virtue; and therefore it is called moral”.17 But natural law was not traditionally understood to comprise only voluntarily undertaken obligations. In unfolding the relations of his concepts of law, morality, and wrongness or being “blameable with reason”, Hobbes says that when we call something wrong and are prepared to condemn it, we say it is contrary to some law. Sin “signifies not every thing done against right reason, but only that which is blameable; and therefore it is called malum culpae, the evil of fault.”18 “We ought to judge those actions only wrong, which… contradict some certain truth collected by right reasoning from true principles. But that which is done wrong, we say it is done against some law”.19 So the way we express our judgment that someone’s action is blameably wrong is by saying that it violates a law. Because Hobbes insists that violation of the natural laws is a sin, we must infer that the natural laws are among those precepts of right reasoning violation of which is morally faultworthy. This distinguishes them from other sorts of violation of right reasoning, as are for example errors in the drawing of conclusions, including mistaken inferences about what conduces to self-interest.

Considered as natural duties the laws of nature are morally binding on the conscience of every competent adult. Violation of any of these laws is “iniquitous”; while violation of the particular law requiring the keeping of covenants is also “unjust”. Even if in a state of nature these natural laws do not have binding legal force, they enjoy universal normativity qua natural duties.20

2 Derivation of a Natural Duty of Political Obedience

Hobbes explains that the laws of nature are rules for the preservation of “men in multitudes”, which prescribe and proscribe classes of action depending on how those affect the construction and preservation of peaceful, flourishing human communities. At their core lies a simple principle of reciprocity—doing ourselves what we require of others—which must be respected if we are to sustain the peaceful communities we need in order to have reasonable prospects for advancing our own life plans, whatever those plans may be. Natural law requires us to refrain from actions we condemn in others, and to perform actions we require from others. In philosophical terms, Hobbes takes natural law to require us to act consistently over the set of our own evaluative attitudes. Because there is one appetite or desire all rational agents necessarily have, namely the desire that their agency be effective, all must desire that the conditions necessary for their own effective agency obtain. The general observation of natural law secures those conditions, and so each has reason to demand that others observe those laws.

Because reciprocity requires that we ourselves do what we demand from others, we then also must observe the laws of nature. It is what Hobbes calls a “dictate of reason” to comply with the laws of nature when others are also willing to comply. Suppose then that we all take natural law to be the standard for moral rightness, and the basic requirement of natural law is reciprocity. Hobbes is consistent and unambiguous on this point, making it in these ways and many more:

God himself, because He hath made men rational, hath enjoined the following law on them, and inscribed it in all hearts: that no one should do unto another that which he would consider inequitable for the other to do unto him.21

The laws of nature… have been contracted into one easy sum… and that is, Do not to another, which thou wouldest not have done to theyselfe.22

Thou shalt love thy neighbor as thyself… is the natural law, having its beginning with rational nature itself23

to be understood, as that a man…should esteem his neighbor worthy of all rights and privileges that himself enjoyeth; and attribute unto him, whatsoever he looketh should be attributed unto himself: which is no more, but that he should be humble, meek, and content with equality.24

Do not that to another which thou thinkest unreasonable to be done by another to thy selfe.25

What rights soever any man challenges to himself, he also grant the same as due to all the rest.26

By reciprocating the behaviors we require from others, and by refraining from the behaviors we fault in others, we operationally acknowledge their equal moral status with our own, helping to avoid offense. Hobbes explains his view that men are not “naturally fit” for society, although they desire it, by their reluctance to treat others as equals, writing “they, who through their pride, will not stoop to equal conditions, without which there can be no society, do yet desire it”.27 We who live together in an effective political society are not willing to allow everyone else in our community to govern themselves according to their own private judgment because, as we can observe from experience (and as Hobbes’s state of nature argument makes vivid), doing so would result in endemic disagreement and irresoluble contention.28 We thus demand that others subordinate their private judgments to an authoritative public judgment, or sovereign.

In particular, considering the benefits of living in a peaceful society, we cannot be willing to permit everyone to seek to disobey, undermine or overthrow the public authority whenever they privately judge such action desirable, for their often erroneous and contradictory judgments will cause disruptions we disapprove and find harmful. Because it is contrary to reciprocity to reserve to ourselves any right we are not content to let everyone else reserve to themselves as well, it follows that we have a duty of political obedience. Hobbes draws on the reciprocity requirement when he asserts that, “to whose dominion we require our fellow subjects to yield obedience for our good, his dominion we acknowledge to be legitimate by that very request”.29 This elliptical argument is made valid by supplying the previously established but here suppressed natural law premise that what we require of others we must do ourselves. Hobbes critically characterizes those who insist on disputing the judgments of the public authority or who refuse to defer to it as arrogant men who “self-opinionatedly disturb the quiet of the public”.30 They pridefully seek to retain a right of private judgment against the public’s which they would certainly condemn in the masses.31

3 Consent-based Obligations Cannot Ground the Moral Duty to Obey

Let me now explain what I see as the conceptual and textual inadequacies of efforts to ground the wrongness of political disobedience contractually within Hobbes’s system. Some of these arguments will be familiar, while others are new. Hobbes explicitly recognizes two sorts of obligations, which I shall term ‘contractual’ and ‘legal’. When we enter into a valid contract or covenant with another to perform some specific act or convey some specific good, we are under a contractual obligation to do what is specified, until such time as we perform or are forgiven, or some new condition arises that voids the agreement. When we are “formerly obliged” to obey another’s commands, and that person commands us to do or forbear some action, we are under a legal obligation to do so. If in Hobbes’s system one could be obliged to obey another only by undertaking a contractual obligation to obey, all legal obligations would depend upon a prior contractual obligation. Hobbes calls violations of contractual obligations “unjust.” Intentional actions violating laws will be illegal, and if political obedience is owed as a contractual matter, also unjust. In the special case that the directive is a law to us issued by God, violation of it is also termed “sinful”. We might term laws whose violation would be sinful “divine legal obligations”.

How faultworthy is it to violate a legal obligation or a contractual obligation? We ordinarily think that illegal action per se, particularly in violation of a bad law, is not particularly faultworthy. We distinguish immorality from illegality (and from imprudence), and think it to be much the most serious indictment of our behavior. Religious believers do take a charge of sinfulness seriously, but probably rather because they understand sin as wrong than because strictly illegal. If the best argument Hobbes had to offer against political resistance were that in addition to being risky it is illegal, we would be left free to conclude that it may nonetheless be morally justified. That would not serve Hobbes’s persuasive purpose.

So what in Hobbes’s system explains the fact that people living within an ongoing political society are morally required to obey its government, thus properly subject to moral criticism for criminal, seditious or rebellious behavior? On one account, this moral requirement results simply from their having undertaken a contractual obligation to obey. Call this the simple account. A person’s covenant to obey the sovereign is self-sufficient to create a moral duty to obey, because valid covenants are inherently morally binding. On an alternative account, people’s moral duty to obey is a consequence of their being legally obligated to God to obey a set of divine natural laws which require them to keep their covenant to obey their sovereign. Call this the compound account. The covenant of subjection to a civil sovereign is not self-sufficient, but receives its morally binding force from a divine law of nature requiring that covenants be kept. On this second account, being morally bound is actually a matter of being subject to a set of literal laws (the laws of nature) directed toward oneself as a political subject of God’s kingdom.32

The simple account, according to which covenants suffice, faces the challenge of explaining how covenants have this power to create moral obligations in only some cases and not in others. Hobbes insists that covenants not to defend oneself or to do any of the many other things exempted as “true liberties of subjects” do not create moral obligations.33 This implies that even if a covenant were necessary for obligation, it is not in all cases sufficient. He also insists that “a covenant if lawful binds by the force of natural law… if unlawful, bindeth not at all.”34 And those who vow anything contrary to God’s law of nature vow in vain because it would be unjust to honor such a vow.35 Even were these limitations on valid covenants by natural law not decisive, the mysterious alleged sufficiency requires some explanation, and neither of what we might construe as Hobbes’s efforts to explain is plausible.

Although Hobbes does suggest that in obligating ourselves by covenanting we “de-liberate” ourselves so that we no longer have the liberty we previous enjoyed to do or to forbear the action about which we were deliberating, this cannot be understood as some literal loss of our ability to act against our contract.36 Hobbes defines liberty as the absence of external impediments to motion. In contractually obligating ourselves, no such external impediments to motion are erected, nor do we lose our internal power to act in violation of the covenant; we merely become blameworthy if we do violate it. Yet Hobbes has said that we are not blameworthy if we violate some covenants, such as not to defend ourselves from force by force. Indeed, if obligations disabled their own violation, there would be no need to try to persuade people to fulfill their obligations, and subjects would be incapable of rebelling.37

Another proposal to explain the sufficiency of covenants to create moral obligations would be to assert that this is true by definition. Hobbes’s suggestion that it is inconsistent to later undo what one had formerly agreed to do, and that such inconsistency is like “absurdity”, might gesture toward this proposal. Suppose that it were analytic that violating a contractual obligation is morally wrong. How would that fact make a claim on us? Hobbes himself insisted that definitions relate terms to other terms, and not to things in the world, such as men, or their reasons, or their motivations. Definitional fiat has no special power to activate any motivation to meet our obligations, or to make us believe that we should. The idea that definitions can “bind” people, morally or in any other way, is puzzling. Neither the de-liberation account nor the definitional account of the sufficiency of contractual obligations is satisfying.

In addition, the simple account diminishes the importance of Hobbes’s laws of nature to a degree that appears incompatible with the attention Hobbes consistently lavishes on those laws; and he does insist that absent the law of nature requirement to keep our covenants, covenants would be “vain”, suggesting that they are not in fact morally self-sufficient. This has led some to endorse the compound account, according to which covenants receive their moral purchase from a law of nature mandating that covenants be kept.

The compound account requires an explanation of how the law of nature imposes moral requirements. One understanding of the laws of nature, as precepts of personal prudence, cannot provide the needed account. If we take the laws of nature to be merely instrumental precepts for obtaining some desired ends, we confer on them the status of mere advice, and advice only to those who desire to realize the ends those laws promote, and desire that more than they desire anything else (like seeking revenge, or glory). The laws of nature would provide recommendations, rather than obligations. The problem with this account is that the laws of nature could then be morally binding only if we have a moral duty to pursue the ends they instrumentally serve. This account requires positing morally mandatory ends, some bonum we would be faultworthy to fail to pursue, a claim Hobbes seems to deny.38

If natural law is an obligation, is it a contractual obligation, or a legal obligation? To say it is a contractual obligation yields the compound account that our obligation to obey the sovereign depends on our covenanting to obey, plus an obligation to keep our covenants that itself depends on our covenanting to keep the natural law requiring keeping covenants. If the simple account was inadequate because a covenant is not sufficient, simply adding another insufficient covenant (to keep our covenants) is not going to help. If contractual obligations require backing by natural laws to be morally binding, but natural laws are themselves just contractual obligations, we still don’t have a satisfactory account. And of course, if the natural law requirement to keep covenants is a contractual obligation, those who haven’t made any such contract will not act wrongly when they violate their covenants.

Perhaps then, the natural laws are legal obligations. A second version of the compound account understands the laws of nature to be literal laws imposed by God on people who are obligated to obey him. The contractual obligation to obey the sovereign gets its force from a legal obligation to obey God’s natural law requiring that covenants be kept. A law, says Hobbes, is the command of one whom we are formerly (already) obligated to obey. Here what is needed is an explanation of how it is that men are obligated to obey God. Three explanations have been offered, drawing on covenant with God, or on God’s power, or on belief in God. To suppose with the first of these that our obligation to take the laws of nature as literal laws depends on our having covenanted to obey God either introduces a vicious regress into the argument or else returns us to the problematic simple account. Our moral duty to keep covenants would depend on a prior covenant to obey God’s law requiring the keeping of covenants. If that prior covenant to obey does not suffice to create moral obligation, (because covenants are not sufficient), a further covenant to honor the covenant of obedience would be needed, and so on, indefinitely. If instead we suppose the subjection covenant is sufficient to establish moral obligation in the case of subjection to God, it should also be sufficient in the case of subjection to a human sovereign, which is just what the simple account maintains. But we found the simple account inadequate.

Furthermore, if being morally obligated to obey the laws of nature required covenanting to obey God’s laws, and that required covenanting with God, very few people would have moral obligations because very few enjoy the direct supernatural communication with God needed to enter into a covenant with him.39 Only a person who is in direct supernatural communication with God, for example Adam or Abraham or Moses, or a person who is already obligated to take for God’s law whatever a civil sovereign mediator (for example Moses) between God and himself shall assert to be God’s law, can enter into the sort of covenant with God that would impose on himself a contractual obligation to obey the natural laws. (Of course, subjects whose civil sovereigns incorporate the natural laws into positive civil law will have a legal obligation to obey the natural laws; but because on compound accounts subjects’ obligation to obey their civil sovereign’s laws is parasitic on their being bound to keep their covenant of subjection by the third law of nature, deriving the obligation to obey natural law in this way introduces a vicious circularity.)

A second explanation for how it is that people are obligated to obey God’s laws of nature avoids these problems by grounding that obligation in God’s irresistible power.40 Some critics have suggested that this account implausibly roots morality in brute coercion. Fear of God’s irresistible power to destroy them coerces men to promise obedience (which promise would have to be sufficient to create a moral obligation if we are to avoid the regress problem), or else God’s irresistible power compels men to behave against their wills to promise to obey God. In either case, their promise is coerced.

I would argue, however, that an explanation in terms of God’s irresistible power need not posit coercion. It could appeal to the unique feature of God’s power that it can be exercised so as not only to motivate compliance (by offering incentives and disincentives to engage existing passions) or cause involuntary compliance, but also so as to compel voluntary compliance by implanting or activating different passions. God, unlike men, can cause people to will to do as He wishes by profoundly altering their experiences and softening or hardening their hearts. God can harden Ramses’s heart, strike Saul blind to motivate his conversion, and cause Augustine to hear voices and open his Bible to a certain passage. Hobbes insists that actions are voluntary when they flow from the will, and although persons of limited power can only address our existing passions, an omnipotent God has the power to alter the passions on which our will depends, either directly, or by altering the experiences that give rise to those passions. This explains why it would be a mistake to suppose that God’s reigning by his irresistible power must necessarily have to be understood as an objectionable exercise of rule by brute coercion or threat of punishment.

Nevertheless, this account of the normativity of natural law has the peculiar result that because the natural law morally binds because God causes us to will to undertake a legal obligation to God to follow it, anyone who fails to will to undertake that obligation to follow it must not have been bound to obey it. The natural law will not bind anyone whom God has not caused to will to undertake a contractual obligation to obey him, and such people will not be properly subject to moral criticism. We do not get the universal applicability of natural law Hobbes assumes. If instead we suppose that God has caused all of us to will to undertake the obligation to obey his natural laws, it becomes hard to explain our widespread violations of natural law. These violations cause significant social strife. Yet by hypothesis God exercised his irresistible power to cause everyone to will what he wanted them to will. If God knows that it is in vain to undertake an obligation one doesn’t then keep, it would make sense that if He caused us to will to undertake the obligation to obey his natural laws, He would also cause us to will to fulfill that obligation by obeying those laws. Yet had God done the latter, we would all obey natural law. If God had caused all of us to will to obey natural law, this account of the moral bindingness of natural law would merely describe what we do, not prescribe what we ought to do. Such an account would be explanatory, but not properly normative. This speculation is beside the main point however, because we clearly often do not obey natural law or even try to obey. The main point is that although God could have caused us (without coercing us) to will to covenant to obey natural law, the fact that most people have made no such covenant would mean that natural law is not morally binding on most people. Hobbes cannot accept that conclusion.

A third account of how we become obligated to obey God’s natural law requiring the keeping of our covenant of civil subjection is that holding a certain sort of belief about God makes us God’s subjects, and his natural laws literal laws to us. This conative account of our subjection to God grounds our obligation of obedience on the belief that an all-powerful God exists who commands us to observe the natural laws under pain of divine punishment in an afterlife for their violation. Because the naturally consequent bad effects of violations of natural laws occur uncertainly and haphazardly, allowing, as Hobbes acknowledges, for the prosperity of the wicked in this life, we have to posit extra-natural punishment for their violation in some further realm if we are to be confident that violations will in fact be punished. We have termed a belief with this specific content belief in the Penal God (pg). The suggestion is that in merely believing in the existence of pg we become God’s subjects—no covenant needed—making the natural laws literally law to us.41 One proponent of this view writes “submission to God creates the obligation to obey the proper laws [of nature] because it is a voluntary act, namely believing in God” whereas atheists “have not submitted to God by believing in him. Thus they are not obligated by the laws of nature.”42 The first problem with a view like this is that Hobbes explicitly denies that belief is a voluntary act. He writes, “as for the inward thought and belief of men… they are not voluntary”.43 We cannot choose what we believe; beliefs are rather a function of our experience and reason. Then because in Hobbes’s system obligations require voluntary acts, mere belief cannot create obligation.

The second problem is that, Hobbes’s text aside, as a general rule, belief does not create moral obligation. I believe that sheep have wool and that it is usually white in color; but that belief does not entail that I am under any obligation to refrain from causing sheep to have no wool, or changing their wool’s color. My belief does not make it impermissible for me to shear sheep, dye them pink, or perhaps even tinker with their genetics so as to breed bald sheep. (There might be other reasons I shouldn’t do those things, but my belief in the usual color of sheep’s wool is not a reason.) To treat a person’s belief as a form of covenant would make covenant extremely tacit (hence subject to Hume’s famous objection); we cannot possibly refuse to covenant because our beliefs are not voluntary! The underlying problem is that this interpretation treats assent to a proposition as morally equivalent to covenanting or promising to do something. Hobbes himself did not make this mistake. He explains that consent, which he thinks of as co-assenting, occurs when a number of people all hold the same belief, or agree that something is the case. He distinguishes consent from covenant, which is an agreement to do or forebear something that creates a bond of obligation. He insists that consent is not a firm enough basis for the stability of a human political society; moral bonds are needed because unlike bees and ants, humans do not always converge (co-assent, consent) in their private judgments, and their judgments vary over time and under the influence of passions.

Bishop Bramhall objects to Hobbes that the ground of his “error is… “that every man makes by his consent the law which he is bound to keep”… But it is not true… The law of nature, written in our hearts by the finger of God; the laws of conquerors…. the laws of our ancestors… do all oblige us to the observation of them; yet to none of all these did we give our actual consent.”44 Bramhall imagines Hobbes is saying that all these laws are “elective”, constraining only those who have covenanted to obey them.45

Hobbes replies that “whereas he saith, the law of nature is without our assent, it is absurd; for the law of nature is the assent itself that all men give to the means of their preservation”.46 Because on Hobbes’s account assent is by definition judging something to be correct, it is strictly speaking absurd to claim that the conclusions every person judges to be correct are without our assent. What is significant is that Hobbes does not reply to Bramhall by insisting that the laws of nature are indeed dependent on covenant. Had that been his view, this would have been the perfect opportunity to say so. Instead, he insists that they are matters of universal assent. This is precisely what we should expect him to say if the laws of nature are natural duties.47

The third problem with the suggestion that mere belief in pg creates an obligation to obey natural law is that it entails the morally repugnant conclusion that no one but those who believe that there exists a God who has propounded these specific natural laws to us, and will punish us in the afterlife for noncompliance (thereby excluding pagans, polytheists, deists, atheists) has any duty at all—legal or moral—to act as those laws require. Unbelievers in pg are not morally required to be equitable, just, grateful, not cruel, not arrogant, not prideful, and so on. As we saw in Section 1 above, Hobbes rejected that view.

Magnifying this difficulty is that Hobbes explicitly denies that we can have natural knowledge of an afterlife, including among “those points of faith which cannot be understood by natural reason, but only by revelation” “that there are rewards and punishments after this life”.48 Indeed, even the barebones belief in the existence of a God that acts as first cause—the philosopher’s god—can be acquired by an exercise of natural reason only by very few men. Hobbes writes that “men that are continually engaged in pleasures or seeking of riches and honour; also men that are not wont to reason aright, or cannot do it, or care not to do it; lastly, fools, in which number are atheists, cannot know this”.49 So unaided natural reason cannot arrive at the belief in pg, severely limiting the number of people who have any obligation to obey natural laws on the conative account of the legal obligation to obey God.

I take this third problem with the view that the obligatoriness of natural laws depends on belief in pg to be particularly serious. Hobbes is emphatic that the laws of nature are eternal and immutable, apply everywhere and always in foro interno, not changeable in the least “jot nor tittle”. Ignorance of natural law excuses no person who has enough mental wherewithal to govern his or her own private life. Hobbes explains that “the laws of nature… are the laws of God, and carry their authority with them, legible to all men that have the use of natural reason.”50 Hobbes here claims not just that the natural laws are knowable by all mature normal people, but that they have authority over them. An advocate of the conative account of the obligation to obey natural law may try to meet this expectation by noting that considered as instrumental maxims for creating peaceful communities, the natural laws make a prudential claim on all, even though as obligatory laws they do not.51 But this response again yields too little normativity, and of the wrong sort. The laws of nature would be advice to those who care most about the ends those laws serve, but would not be moral obligations.

It would seem that neither the simple account nor any of the three variants of the compound account of the moral obligation to obey the civil sovereign succeeds in establishing a moral claim on everyone whom Hobbes supposes to be politically obligated. What these accounts have in common is that they take the only possible sources of non-prudential normativity in Hobbes’s system to be contractual obligation or legal obligation. Yet because Hobbes insists that obligations can arise only from a person’s own voluntary action, none of these accounts can generate a universal duty of political obedience, at least not without relying on covenant so tacit as to be inescapable.52 Because the natural duty account succeeds while all variants of the contractual account fail, I urge that we should accept that Hobbes’s laws of nature ground political obligation qua natural duties. What remains is to square this account with Hobbes’s own explicit embrace of the contractual view of political obligation.

4 Reconciling Covenant with Natural Duty

There is abundant textual evidence that Hobbes himself thought of political obligation as contractual. For example, he writes that “civil societies are… bonds, to the making whereof faith and compacts are necessary”,53 that “no man is obliged to perform obedience before the contract be made”,54 and “no man hath a supreme power which is not bestowed on him by our own consent”.55 Hobbes describes how sovereignty might be instituted “by Covenant of every man with every man, in such manner, as if every man should say to every man, I authorize… all [the sovereign man or assembly’s] actions”. 56 Political obligation involves a moral duty to defer to the sovereign’s judgment, and, says Hobbes “those who are outside of a state are not obliged to follow another’s opinion, while those in a state are obliged by covenants.”57

In light of these texts, it is fair to ask why, when Hobbes has available to himself such an intuitive argument from natural duty for the moral requirement to obey one’s existing effective government, he lays such emphasis on undertaking a further covenantal obligation of obedience. He may be attempting to identify a mechanism or procedure through which subjects might reassure one another of their commitment to observing the duty of political obedience the law of nature requires them to undertake and which they seek to impose on one another. The implicit internalized commitments upon which social peace depend could well be made more psychologically secure if they were to be reinforced by an explicit promise. They might be psychologically reinforced even if we only thought of our political duty as if we had undertaken contractual obligations,58 or on the model of having sold or given away one’s property (which we all know it would be wrong to try to take back). Promising, selling, and giving away are familiar practices that engage our ordinary ideas of moral duty. Nothing in the argument I have advanced precludes undertaking a political obligation by entering into a covenant to obey another. But just as Hobbes insists that although a covenant can be sealed with an oath, the oath adds nothing to the obligation, so too I would say, in Hobbes’s system, promising political obedience adds no moral weight to the natural duty to obey one’s existing effective political authority. If we do validly promise to obey, our failure to obey counts as also “unjust”; but even without any such promise, in exempting ourselves from the obedience we demand from others, it counts as “iniquitious”, a form of vice that is no less serious.

There is some evidence that Hobbes perceived the difference between natural duties and obligations. In the English Leviathan xiv.7, Hobbes writes

when a man hath in either manner abandoned or granted away his right, then is he said to be OBLIGED or BOUND not to hinder those to whom such right is granted or abandoned from the benefit of it; and [it is said] that he ought, and it is his DUTY, not to make void that voluntary act of his own, and that such hindrance is INJUSTICE and INJURY.

Notice that hindrance, injustice, and injury, are associated with being “obliged” or having an obligation not to hinder the enjoyment of the transferred right, whereas duty is associated with the wrongness of taking back the right, or violating the 3rd law of nature that covenants be kept. Applying this passage to a contemporary illustration, once I sell you my car I am “obliged not to hinder your benefit” and it would be “injustice” and an “injury” to you for me to deprive you of the enjoyment of it by say, stealing its engine or fencing it in to keep you from driving it. But what I “ought” and it is my “DUTY” to do is not to renege on the sale; not to “make void that voluntary act” of my own in selling my car to you, by repossessing the title, or having you arrested by the police for driving a stolen car. That is, my duty is my natural law duty to keep my contract; while my obligation is to refrain from doing all the things I could do to hinder your enjoyment of the car I am granting that you now own.

However, the conceptual lines here are not so clear, and the absence of this formulation from the Latin Leviathan may indicate that Hobbes had not worked out the distinction between duty and obligation to his satisfaction. What is clear is that Hobbes, who was so intent on operating from settled definitions, could have defined obligation as synonymous with duty, if that had been what he thought. Instead, he carved out obligation as the specific type of duty that arises from entering a contract or covenant. This leaves room for a world of duties that depend not at all on contract, violation of which would be iniquitous rather than unjust. The duty of people to obey their government in the ordinary case that they are born into an ongoing political society can be drawn from that world. For Hobbes, there can be duty without obligation.

1

l xv.40. Thomas Hobbes Leviathan: with selected variants from the Latin edition of 1688, Edwin Curley, ed. (Indianapolis: Hackett Publishing) 1994. References are to chapter and paragraph number, with Latin variants preceeded by ol.

2

Philosophical Rudiments of Government and Society (English translation of De Cive) ii.1 note, in The English Works of Thomas Hobbes, ed. Sir William Molesworth (London: John Bohn) 1839; Volume ii (hereafter ew ii). References are to chapter and paragraph number. The specific laws he offers in Chapters 14 and 15 of Leviathan are moral laws that concern our treatment of one another, but reason can discover other rules that profit only the individual. Dispositions to observe those rules, requiring things like courage or self-control, should not be counted among the moral virtues because they may actually harm others, and undermine commonwealths, as when courageous self-discipline increase the rebel’s effectiveness.

3

l xxxi.7, emphasis added.

4

The literature identifies other differences as well, one being that natural duties hold apart from any institutional arrangements or conventional practices.

5

l xv.10.

6

l xxvii.4.

7

l xlvi.6.

8

Behemoth, in The English Works of Thomas Hobbes, William Molesworth, ed. (London: John Bohn) 1839, volume vi, p. 243 emphasis added. Notice here Hobbes’s use of the term duty.

9

Their theorizing about the natural laws is something else altogether. Hobbes characterizes ancient “philosophers” (presumably Aristotle) as understanding the virtues to lie in “mediocrity between two extremes… which is apparently false” (ew ii iii.32), and criticizes heathen philosophers who defined good and evil by their private appetites rather than by the law of the commonwealth. l xlvi.32.

10

In ew ii xiv.19 note, Hobbes writes: “I am so much an enemy to atheists, that I have both diligently sought for, and vehemently desired to find some law whereby I might condemn them of injustice. But…I found none…”.

11

l xxvi.40, emphasis added.

12

l xxvii.4, emphasis added.

13

I diagnose the Foole’s problem in S.A. Lloyd, Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature, Cambridge University Press, 2009 (hereafter cln) pp. 296–325.

14

cln pp. 33–49 textually documents these and other natural law duties of the sovereign.

15

Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition, translated by Daniela Gobetti (Chicago 1993) p. 158.

16

Op. Cit. p. 120.

17

ew ii iii.31.

18

ew ii xiv.17.

19

ew ii ii.1.

20

If this is the source of their moral normativity, what motive does Hobbes see in us to comply with the natural laws, and in particular with their core principle of reciprocity? Accepting as Hobbes does the principle ought implies can or that no man is tied to impossibilities there must be some motive normally present in some degree in all competent adults which is capable in many cases of moving them to strive to perform their natural duties. There are good reasons for thinking the operative motive is a type of pride, but space limitation precludes discussing them here.

21

De Homine xiv.5, in Man and Citizen, Bernard Gert, ed. (Gloucester, Mass: Peter Smith) 1978, p. 73.

22

l xv.35.

23

ew ii xvii.8.

24

Hobbes, The Elements of Law, Ferdinand Tonnies, ed. (London: Frank Cass) 1969, i.18.6. Reference is to part, chapter, and paragraph.

25

l xxvi.13.

26

ew ii iii.14.

27

ew ii i.2 note.

28

Because such contention undermines our ability to secure our ends no matter what those ends may be, we, qua rational agents who necessarily desire to make our agency effective, cannot will to live in such a condition. Thus Hobbes writes “whoever therefore holds, that it had been best to have continued in that state in which all things were lawful for all men, he contradicts himself.” ew ii i.13.

29

ew ii xiv.12.

30

ew ii preface p. xxi.

31

cln pp. 219–220 offers an analytical derivation of the reciprocity theorem itself as a requirement of reason, and on pp. 230–234 argues that for Hobbes, accordance with reason encompasses, without differentiation, both what we call the reasonable and the rational.

32

Howard Warrender used this distinction to categorize accounts of the basis of political obligation in Hobbes’s system, locating his own interpretation within the latter, divine law, camp. Warrender, The Political Philosophy of Hobbes (Oxford: Clarendon Press) 1957. I believe that A.P. Martinich also offers a compound account in The Two Gods of Leviathan (Cambridge University Press 1992).

33

It would be an error to suppose that the true liberties cover actions that it would be impossible for a person to perform, thereby falling under the conceptual constraint on valid covenants that one cannot be bound to “impossibilities”. Hobbes recognized that people who duel or who willingly accept martyrdom can and do resist the impulse to defend themselves against force. People can and sometimes have testified against loved ones, etc.

34

ol xiv.33.

35

l xiv.31.

36

Daniel Eggers has discussed at length related problems with contractual obligation in his “Liberty and Contractual Obligation in Hobbes”, Hobbes Studies Vol. 22 Issue 1 (2014) pp. 70–103.

37

His discussion of punishment would also have looked much different; the only possible explanation of criminal conduct would be failure to understand what the law commands.

38

He does not believe that risking or sacrificing one’s life is immoral; war heroes like his friend Godolphin, and the genuine Christian martyrs did not act immorally. Gert attributed to Hobbes the view that humans are morally required to desire ends that it would be in their self-interest to pursue, such as self-preservation, health, security, and the avoidance of pain. Bernard Gert, “Hobbes on Reason”, Pacific Philosophical Quarterly 82 (2001): 243–257, and Gert, “Hobbes’s Psychology”, in Tom Sorell ed., The Cambridge Companion to Hobbes (Cambridge University Press 1996). I critique this view in cln, pp. 185–190.

39

l xiv.23: “To make covenant with God is impossible, but by mediation of such as God speaketh to (either by revelation supernatural or by his lieutenants that govern under him and in his name); for otherwise we know not whether our covenants be accepted or not.” Cf. l xviii.3.

40

A.P. Martinich develops a compound account of this kind in The Two Gods of Leviathan.

41

Michael Byron offers the most complete development of a view of this sort in his Submission and Subjection in Leviathan (Palgrave, 2015), Chapter 4 Section 3.3.

42

Ibid. p. 92.

43

l xl.2.

44

Liberty, Necessity, and Chance, in The English Works of Thomas Hobbes, William Molesworth, ed., (London: John Bohn) 1839, Volume v, p. 158.

45

In fairness to Bramhall, Hobbes himself had earlier conflated covenant with consent, writing that the Laws of Nature “sprang not from the consent of men”, “for if they had their original from the consent of men, they might also by the same consent be abrogated; but they are unchangeable.” ew ii xiv.2. But in the Elements of Law i.19.5–7, he had explained that “concord amongst men is artificial and by way of covenant” whereas “consent (by which I mean the concurrence of many men’s wills to one action) is not sufficient” without the sovereign power that only covenantal union can create. Hobbes, The Elements of Law, Ferdinand Tonnies, ed. (London: Frank Cass) 1969. In his reply to Bramhall, Hobbes substitutes ‘assent’ for Bramhall’s term ‘consent’, disambiguating a term that might be taken as covenant.

46

ew v, p. 180.

47

Further, Hobbes replies that the vanquished are conquered “by virtue of their assent, that promised obedience for the saving of their lives”. He is saying not that assenting is promising, but rather that those individuals who, in light of their assent to the idea that it is better to be the proper subject of a conqueror than to live as his slave or be killed by him, did promise (covenant) to obey, have an obligation to obey. If I do not assent to that idea, instead of promising obedience “May not I rather die if I think fit?”. ew v, p. 180 Certainly.

48

ew ii xvii.13 Similarly, in his reply to the Foole Hobbes insists that “there is no natural knowledge of man’s estate after death”. l xv.8.

49

ew ii xiv.19 note.

50

Of the Scriptures, Hobbes writes, “as far as they differ not from the laws of nature, there is no doubt but they are the laws of God, and carry their authority with them, legible to all men that have the use of natural reason; but this is no other authority than that of all other moral doctrine consonant to reason, the dictates whereof are not made but eternal”. l xxxiii.22.

51

In cln pp. 120–131 I have argued that the laws of nature fail to make even a prudential claim on all people.

52

Hoekstra attributes to Hobbes the implausible and repellent view that “the mere fact of their being alive counts for assent (wherever there exists a power that can destroy them)… The only people free of obligation to the present power are the dead (and slaves in shackles).” Kinch Hoekstra, “The de facto Turn in Hobbes’s Political Philosophy”, Leviathan After 350 Years, Tom Sorell and Luc Foisneau, eds. (Oxford Clarendon Press, 2004) P. 68.

53

ew ii i.2 n.

54

ew ii xvii.6.

55

ew ii xiv.19.

56

l xvii.13.

57

Hobbes, De Homine xiii.8 in Man and Citizen, Bernard Gert, ed. (Gloucester, Mass: Peter Smith) 1978.

58

To use Hobbes’s “as if” language in Leviathan xvii.13.

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