Reclaiming the Rights of the Hobbesian Subject

Reclaiming the Rights of the Hobbesian Subject Eleanor Curran

Reclaiming the Rights of the Hobbesian Subject

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Reclaiming the Rights of the Hobbesian Subject Eleanor Curran Kent University

© Eleanor Curran 2007 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2007 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–0–230–00149–7 ISBN-10: 0–230–00149–1

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This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 16

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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

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This book is dedicated to the memory of my father, Michael Joseph Curran. With love and thanks for his kindness, his wit and for all the conversation and argument around the table.

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Contents List of Tables

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Preface

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Acknowledgements

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Introduction

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Part I The Historical Context of Hobbes’s Political Theory

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1 Examining the Orthodoxy – Hobbes and Royalism

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2 The Political Context – Taking Sides?

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Part II Hobbes’s Theory of Rights: The Textual Argument

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3 Liberties and Claims – Rights and Duties

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4 The Full Right to Self-Preservation and Sovereign Duties

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Part III Hobbes and Theories of Natural Law and Natural Rights

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5 The Natural Rights Tradition – With or Without Hobbes?

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Part IV Hobbes’s Theory of Rights – A Modern Secular Theory

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6 Current Discussions of Hobbesian Rights. The Distorting Lens of Hohfeld

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Conclusion: Towards a Hobbesian Theory of Rights

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Notes

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References

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Index

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List of Tables 2.1 Four political concepts – Hobbes and his contemporaries compared.

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Preface In the time that has passed since I started writing about Hobbes’s theory of rights, there have been some significant changes in the way that I think about the rights that Hobbes describes for individuals. The core argument – that, contrary to much Hobbes scholarship, Hobbes does describe substantive rights for individuals – remains, but how I think that those rights should be analysed has changed considerably. I argue that in Leviathan Hobbes describes what could be characterised as claim rights for individuals in his discussion of the second law of nature, and this is argued against the received view of most Hobbes scholarship, that Hobbes describes only liberty rights for individuals but never claim rights. The use of Hohfeldian language and the assumption of a Hohfeldian analysis of rights are present in most modern discussions of Hobbesian rights, and it seemed to me initially that my discussion should also be conducted in this way. I no longer hold this view, however, and what is argued here is that although the rights that individuals come to hold after conforming to the second law of nature could be characterised as claim rights, there are other rights Hobbes describes for individuals that cannot be categorised within the Hohfeldian analysis. The claim right, with its Hohfeldian assumptions, is not the best way to characterise the protected rights that exist after individuals conform to the second law of nature. The aggregate right to self-preservation also comes to be protected, but not by directly correlated duties, and so it cannot be characterised as a claim right. These observations led me to focus more specifically on the Hohfeldian analysis of Hobbesian rights and to argue that this approach has itself contributed to the misreading of Hobbesian rights, which cannot all be explained within it. An examination of the historical context of Hobbes’s pronouncements on rights has proved illuminating in demonstrating the political significance of his support for the right to self-defence even against the king and of the inalienability of the broad right to selfpreservation. It has proved unfruitful, however, in providing a philosophical context for the theory. I argue that Hobbes’s theory of rights ix

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is not a theory of natural rights with its basis in natural law like Locke’s far more famous and more celebrated theory. And so I turn to modern, secular theories of rights, which seem a more suitable theoretical home for Hobbes’s own secular theory. In searching for a theory of rights that Hobbes’s theory might fall under, I first argued (2002) that a Razian interest theory might be the one. I now argue that Neil MacCormick’s interest theory probably comes closest but that this attempt to capture Hobbes’s theory also fails in the end. Hobbes’s definition of a right as a liberty and his argument that not all rights should be protected set his theory apart from MacCormick’s and demonstrate again the difficulty of fitting Hobbes’s theory of rights into a philosophical context. My conclusions here are more tentative than those of some of my earlier articles on Hobbes’s theory of rights, and yet I think they demonstrate a better, though still not complete, understanding of the theory as Hobbes presents it in Leviathan.

Acknowledgements The central argument of this book, that Hobbes presents a substantive theory of individual rights in Leviathan, has its origins in my doctoral dissertation, and the greatest influence on my thinking about Hobbes has been my then supervisor Stefan (Bernard) Baumrin. He has been an inspiring teacher and a valued adviser and friend since my time at the Graduate School of the City University of New York, and I am very grateful to him for all the help he has given me. I have benefited enormously from the helpful comments and suggestions of various people who read drafts of what were papers and have ended up, with revisions, as chapters. I would particularly like to thank William Lucy, John (G.A.J.) Rogers and Stuart Toddington. And I would especially like to thank Sean Coyle for his many valuable and enlightening comments on various parts and stages of this project and for the many fruitful e-conversations we have had. Material in Chapters 1 and 2 has already been published in the British Journal for the History of Philosophy as ‘A Very Peculiar Royalist: Hobbes in the Context of his Political Contemporaries’. I am grateful to the editor G.A.J. Rogers and the publishers for permission to republish it with revisions here. Material in Chapter 3 was originally published in the Journal of Ethics, 6 (2002) 63–86, as ‘Hobbes’s Theory of Rights – A Modern Interest Theory’, Eleanor Curran, copyright 2002 Kluwer Academic Publishers. It is republished here, with revisions, with kind permission of Springer Science and Business Media. Material in Chapter 4 was first published in Law and Philosophy as ‘Can Rights Curb the Hobbesian Sovereign? The Full Right to SelfPreservation, Duties of Sovereignty and the Limitations of Hohfeld’. I am grateful to the editor, Michael Moore, and the publishers for permission to republish that material, with revisions, here. Much of the material in Chapter 6 was originally published in Hobbes Studies as ‘Lost in Translation: Some Problems with a Hohfeldian Analysis of Hobbesian Rights’. I am grateful to the editor, Martin Bertman, and the publishers for permission to republish it, with revisions, here. I should add that while I have included material from these articles, my argument has developed and sometimes changed so that, xi

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for example, the very simple and brief argument in the article in the Journal of Ethics, that Hobbes’s theory of rights could be characterised as a modern interest theory, has changed to a much less conclusive and somewhat more detailed discussion here in the conclusion. Similarly, while I first argued that commentators had missed the presence of Hohfeldian claim rights that come into being when individuals conform the second law of nature, I later came to the view, and argue here, that the Hohfeldian analysis itself is flawed and cannot capture all the rights that Hobbes describes. Two papers forming part of my argument at various stages were given to the Jurisprudence section of the Society of Legal Scholars, and I would like to thank the participants for their helpful comments. A paper that formed most of Chapter 6 was given to the International Hobbes Association at the Pacific Meeting of the American Philosophical Association at Portland, Oregon, in March 2006. I would like to thank the participants for their helpful and stimulating comments. I have also given papers on parts of the developing argument to a senior staff seminar at King’s College London (philosophy department) and to staff seminars at Keele and Kent Law Schools. I would like to thank all my colleagues for their helpful comments. I am very grateful to the Shelagh Anne Venning Trust for choosing to support this project by awarding me a grant, which enabled me to finish the book. And I would like to thank John Wightman, my head of department, for allowing me to reduce my teaching load in spring 2007. I would like to acknowledge a rather strange debt of gratitude to Eileen Gallagher for hitting a nerve with her persistent question, late one evening, ‘yes, but what has Hobbes got to say to us today?’ This question stayed with me and helped to push me towards what became the final chapter of the book. I have been inspired and fascinated by many writers on Hobbes. Bernard Baumrin’s articles on Hobbes’s egalitarianism and on the coextensiveness of the natural and the civil law helped to change the way I look at Hobbes’s theory. Quentin Skinner, C.B. Macpherson and Johann P. Sommerville have added to my fascination with the theory’s historical context, and Leo Strauss, it seems to me, captured something of importance in his famous remark that for Hobbes ‘the basis of morals and politics is not the “law of nature”, i.e. natural

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obligation, but the “right of nature”, … i.e. the justified claims (of the individual)’ (Strauss, 1952, pp. 155–156). I am grateful for the benefits of their scholarship on Hobbes and aware that I cannot aspire to anything approaching it. And while they and many others have influenced me, all the flaws and shortcomings are, of course, my own. I would like to thank Dan Bunyard, philosophy editor at Palgrave Macmillan for all his support and encouragement, and the staff of Macmillan India Ltd. for their efficiency and courteousness while running the production side of things. I would especially like to thank Deborah for her constant support, endless good humour and many silly jokes about Hobb(e)s. And finally, I would like to express my gratitude to my mother Eleanor, who died unexpectedly during the production stage of the book. Her love and support were ever present in the background and were invaluable.

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Introduction

A book setting out the rights of subjects in Hobbes’s political theory would, in the view of most Hobbes commentators and rights theorists, be a very short book indeed. The received wisdom, that Hobbesian subjects give up all their rights to the sovereign or that any rights that are retained are retained in name only, is so entrenched that to question it may seem strange. And these assumptions are closely tied to other assumptions of Hobbesian orthodoxy; the assumption that Hobbes was an arch-royalist during the English Civil War, a staunch supporter of Charles I; that in his political theory he champions an uncompromising and extreme form of absolutism and that his egoistic, subjectivist view of morality cannot support any genuine moral concepts, including those required for a theory of moral rights. These assumptions are seen to support each other and they buttress a view of Hobbes’s political philosophy that has found few detractors in the last hundred years or more. There are, of course, many disagreements about Hobbes’s theory among the scholars who study it, but there are also many orthodoxies and these orthodoxies have such a grip on our minds that when we read Hobbes we are inclined to see his theory through them. When Hobbes is studied seriously and the details of his argument are subjected to scholarly scrutiny, differences do emerge: about his psychology, about his moral theory, about how integrated the theory is, about his scientific method and so on. And Hobbes’s style of writing, with its apparent adherence to strict logical principles combined with a tendency to make statements and arguments that can be read in different and conflicting ways, also gives rise to contradictory 1

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interpretations. This is nowhere as clear, perhaps as in the polarised ‘readings’ of his moral theory, which argue variously for Hobbes being an egoist and subjectivist, a relativist, a utilitarian, a natural law theorist and a Kantian deontologist. And yet, despite these widely differing interpretations of some aspects of his political theory, some of the strongest orthodoxies remain. And among the most stubborn of these are the convictions that he was a royalist, who was entirely on the side of Charles I during the Civil War, that his absolutism is extreme and unflinching and that he fails to provide any substantive rights for subjects. It has not always been this way, however. Once one starts to look at the historical context of Hobbes’s writing, some interesting facts emerge. Two men who knew Hobbes personally and who were well-known supporters of Charles I and the royalist cause (Edward Hyde, who became the Earl of Clarendon, and Bishop Bramhall), both wrote attacks on Leviathan 1968 in which they accused Hobbes of supporting Cromwell and the parliamentarians and even the radical Levellers. Bramhall said that Hobbes had written a ‘Rebells catechism’ and Clarendon accused Hobbes of publishing ‘false and evil Doctrines’ which were ‘pernicious to the Soveraign Power of Kings, and destructive to the affection and allegiance of Subjects’ (Bramhall in Rogers ed., 1995, p. 145; Clarendon, 1676, Epistle Dedicatory). It is not so much that we should immediately take these attacks at face value; after all they do not offer any sort of proof of Hobbes’s beliefs or allegiances. But they do raise some interesting questions. What does it say about Hobbes’s theory, that two well-informed royalists such as Clarendon and Bramhall could make such public accusations as these? Presumably, to suggest that Hobbes might be sympathetic to the parliamentarians was not so outrageous at the time that it would not be taken seriously. To make such a suggestion today does seem outrageous or even ridiculous; so what did these men see in Hobbes’s political theory, that we do not see, 350 years later? One of the things they saw, that modern Hobbes scholars do not always see, is that there are positions Hobbes takes on certain issues which had a particular resonance at the time he was writing. When Hobbes says, in Leviathan, that the individual subject retains her right of self-defence, even against the sovereign, he is saying something

Introduction

3

that was of the utmost political importance and sensitivity during the 1640s. In the political debates that raged during the period of the English Civil War (1642–9), the question of the right to selfdefence was particularly contentious. Royalists argued that the right to self-defence, along with all other rights, must be given up to the sovereign and that an individual was never justified in attacking any superior, let alone the king, even in self-defence. ‘According to Michael Hudson (a chaplain to Charles I), our duty to obey the civil magistrate is of a higher order than the obligation to defend ourselves. So we may never defend ourselves against the king’ (Sommerville, 1992, p. 35). This was the standard view of royalists and the text of Romans 13 was often used to add religious weight to it: Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. (The New Testament, Romans 13, 1–5 The Gideons International) This text fits nicely with divine right theory, according to which, a monarch’s right to rule comes directly from God in a line of succession beginning with Adam and continuing down to the kings of this period. Divine right theory still enjoyed wide acceptance during Hobbes’s lifetime and, so, if we start to look at his theory in the context of these sorts of beliefs we can begin to see how controversial some of his arguments, such as that of the subjects’ retained right to self-defence, must have been. The argument I want to make in this book is not primarily historical, however, although an examination of the historical context of Hobbes’s political theory does provides its starting point. My purpose is to analyse Hobbes’s theory of rights, as given in his mature political work, Leviathan, and to argue that, contrary to the analysis of most commentators, he does have a genuine theory of substantive political rights. My method, therefore, is analytical as much as historical. I examine the text to pick out Hobbes’s arguments regarding

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the rights of individuals, independently from the historical context within which those arguments were developed. And in the tradition of analytical philosophy, the analysis of the arguments should stand on its own if it were taken away from the historical context. What I think the chapters on historical context add, however, is an equally important insight into the meaning that specific issues, terms and claims had at the time Hobbes was writing. This gives us more information and evidence of a different kind about the arguments he was making and what he might have intended to convey by them and what their political implications might have been. Much Hobbes scholarship has been purely analytical, with Hobbes’s arguments being removed entirely from any commentary about their historical context. Scholars including Howard Warrender, David Gauthier, Gregory Kavka and Bernard Gert have written extensively about Hobbes’s political theory, without reference either to the extraordinary political events that were taking place in England as he wrote or to the outpouring of political thought and debate that accompanied those events. There are signs that this trend is coming to an end. Recent work on Hobbes pays far more attention to historical context than that of even 25 or 30 years ago and in my view this has added a great deal to our understanding of his political theory. What of the theory of rights itself? Most commentators who discuss Hobbes’s theory of rights in any detail argue that it is a weak theory; hardly a theory of rights at all. And the main point of agreement is that Hobbes is said to describe only liberty rights for subjects and not claim rights. This is the language of Wesley Hohfeld, the legal theorist and his well-known analysis of the use of the term ‘right’ in the legal literature (1919). The debate about Hobbes’s theory of rights, such as it is, is now usually conducted in Hohfeldian terms. On Hohfeld’s analysis it is the claim right that is the genuine right, the one with the strength to determine enforcement because claim rights are correlated with the duty or duties of others. And the rights described by Hobbes for subjects are said to lack these correlated duties; to be mere liberty rights, bare freedoms that are correlated with no duties and therefore leave subjects helpless, with no means of enforcing the rights they have been allowed by an all-powerful sovereign. In modern political and moral theory generally, the Hohfeldian analysis also dominates. The terms ‘right’ and ‘claim right’ are often

Introduction

5

used synonymously and it is accepted that genuine political rights must be claim rights. My exploration of Hobbes’s theory of rights leads me to argue, first, that Hobbes does describe rights for subjects that are correlated with the duties of others, and second, that the Hohfeldian analysis has hindered rather than helped our understanding of the rights he sets out. And further, that there are some rights that Hobbes describes that are protected by the duties of another or others, but that cannot be described using the Hohfeldian analysis. These are the rights held under the aggregate right to self-preservation, which are retained by all individuals and carried into the Hobbesian commonwealth. Hobbes’s theory of rights is a theory of substantive political rights, I argue, which come to be protected in various ways. And this theory cannot be explained using Hohfeld’s categories of claim rights and liberty rights. This leads me to search for an appropriate theory of rights to categorise it and I explore first, theories of natural rights, then, the Hohfeldian analysis and finally (briefly), modern will and interest theories. My conclusion is that the closest theory to Hobbes’s on offer is Neil MacCormick’s interest theory of rights but even this cannot explain all the features of a Hobbesian theory of rights, which has its own contribution to make to discussions of political rights. In Part I, Chapter 1, I examine the assumption of Hobbes’s royalism and argue that it is much harder to establish with any certainty than most commentators have assumed. In Chapter 2, I extend my historical investigation to the political writing of Hobbes’s contemporaries. I directly compare what Hobbes says on four important political concepts, one of which is the natural rights of individuals, with what his contemporaries on either side of the Civil War were saying. It turns out that Hobbes is closer to the parliamentarians than he is to the royalists on at least two out of the four and arguably close to the radical parliamentarians. These two political concepts are: equality and natural rights. What the comparison enables me to do is to throw into enough doubt the group of orthodoxies I have mentioned, to clear the way for a new exploration of what Hobbes has to say on the rights of subjects that is no longer encumbered by the convictions that would preclude such an exploration from taking place. The radicals of the Leveller and Digger

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movements of the 1640s were saying things about the rights of individuals that still sound progressive today and the acceptance and use of some of those radical ideas by Hobbes, provides the motivation and justification to explore anew, what he argues in Leviathan, about the rights of individuals. Part II of the book uses textual evidence to formulate arguments about two sets of rights described by Hobbes and the protections he provides for those rights. In Chapter 3, I look at the unlimited rights of the right of nature and what happens when individuals conform to the second law of nature and transfer some of those rights over to others, taking on duties to stand out of the way of the receiver’s exercise of their right. This leaves individuals with rights that look surprisingly like Hohfeldian claim rights (which are usually accepted as substantive political and/or moral rights), and this possibility is explored against a background of denial and alternative readings by Hobbes commentators. In Chapter 4, I turn to the all important right to self-preservation and I argue that this right has often been defined too narrowly and that it comprises a much broader right: what I term a right to full preservation. I also argue that this right has far greater political importance than is usually ascribed to it. It is never given up but is retained by all individuals and carried into the commonwealth, where it comes to enjoy some protection, afforded by the duties of the office of sovereign. And so these two chapters mark the beginning of a reconstruction of Hobbes’s theory of rights; as a theory that provides some substantive political rights for individuals that are strengthened and protected in a Hobbesian commonwealth. In Part III I turn to the neglected question of the philosophical justification for Hobbes’s theory of rights and ask whether it should be categorised as a natural rights theory in the natural law tradition of contemporaries like Hugo Grotius. I argue that Hobbes does not demonstrate sufficient support for traditional natural law premises to be rightly regarded as a natural rights theorist. In Part IV I continue to ask how we might categorise Hobbes’s theory of rights philosophically or theoretically and in Chapter 6 I spell out what was hinted at in Part II that the currently dominant Hohfeldian approach to the analysis of Hobbesian rights has contributed to the misreading of Hobbesian rights and the distortion of

Introduction

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what can be said about the rights and their protection because they fall outside the Hohfeldian definitions. Finally, in the conclusion, I suggest that we turn to modern rights theories and particularly to the interest theory of Neil MacCormick to try to fit Hobbes’s theory into an appropriate theoretical context. But although I argue that this comes closest to an explanation of rights that fits with Hobbes theory, it is not a perfect fit and there are aspects of Hobbes’s theory of rights that are original and unique and are yet to be fully explored and understood.

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Part I The Historical Context of Hobbes’s Political Theory

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1 Examining the Orthodoxy – Hobbes and Royalism

The assumption of royalism Hobbes was a royalist. He supported Charles I during the English Civil War and advocated absolutism of the most extreme variety. He argues that the subjects give up all their rights to the sovereign (except for the bare right to self-defence, which is rendered meaningless by the sovereign’s absolute power). He can be grouped together with other royalist thinkers and writers of his time, such as Sir Robert Filmer, Bishop Bramhall and Dudley Digges. His royalism is expressed and supported in his political writings. A cursory glance at almost any modern commentary on Hobbes will reveal these sorts of assumptions about his political beliefs and partisanship during the period of the Civil War. They are expressions of an orthodoxy that has grown up about Hobbes’s political allegiances in modern Hobbes scholarship. A. P. Martinich, for example, says that ‘Leviathan is suffused with defenses of Charles I’ (Martinich, 1995, p. 16), and that in 1640 Hobbes was about to begin ‘[h]is career as a political theorist committed to the cause of the king’ (Martinich, 1999, p. 121). Johann Sommerville says that one of Hobbes’s intentions was to ‘rebut the principles commonplace among Charles I’s parliamentarian opponents, . . .’ and that ‘[s]uch informed contemporary writers as the pseudonymous “Eutactus Philodemius” and Sir Robert Filmer rightly regarded his theory as essentially royalist in character’ (Sommerville, 1992, p. 3, my emphasis). Richard Tuck is also convinced that Hobbes should be read as a royalist: ‘It is clear that Hobbes’s sympathies were entirely on the side of Charles’s government . . .’ (Tuck, 1993, p. 313). 11

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Another closely connected assumption is that of Hobbes’s absolutism. The assumptions support each other whichever one is seen as coming first or as being more certain. If he was a royalist who supported Charles I then he was also an absolutist. If he was an absolutist then he would have supported Charles I against the parliamentarians. These two closely related assumptions also connect to another assumption of particular relevance to the argument I will make in this book: the assumption that subjects in a Hobbesian commonwealth lack any substantive rights and more generally, that Hobbes’s political theory lacks a substantive theory of individual rights. It is assumed that if Hobbes supported absolutism then he also supported the notion that subjects must give up their natural rights to the king, who may distribute such rights at will. I will say more about this below but for now it will do to just point out the connection, in simple terms, between the assumption of royalism and the assumption of subjects without substantive rights. This set of assumptions about Hobbes’s theory and his own beliefs is so well established, documented and supported, and the assumptions themselves are so tightly knit together in much Hobbes scholarship, that to question them may seem both unnecessary and pointless. I shall be arguing that this is far from the case. My intention in this chapter is to prise these assumptions apart and examine separately Hobbes’s relationship to royalism. The impression given by the vast majority of recent commentaries on Hobbes’s political theory is that Hobbes’s loyalty to Charles I and the royalist cause is so well established and supported that it requires no argument and no detailed textual reference. The questions I want to raise in this chapter are: first, are we justified in making such assumptions about Hobbes’s own political beliefs and, second, how did his contemporaries define his relationship to royalism? This enables me to look at the historical context of Hobbes’s political theory both in terms of his own beliefs and in terms of the responses of his contemporaries to his political theory. The tightly knit assumptions I referred to above were not made by many of Hobbes’s contemporaries. On the contrary, the notion of Hobbes’s loyalty to the royalist cause was vigorously attacked in some cases. The responses to the publication of Leviathan in 1651 were full of controversy and contradiction and some fairly wild accusations. These included Bishop Bramhall’s statement that Hobbes had written

Examining the Orthodoxy 13

a ‘Rebells catechism’ (Bramhall in Rogers ed., 1995, p. 145) and Clarendon’s declaration that he had published ‘false and evil Doctrines’ that were ‘pernicious to the Soveraign Power of Kings, and destructive to the affection and allegiance of Subjects’ (Clarendon, 1676, Epistle Dedicatory). These comments by two leading royalists who were aware of all the political arguments of the day should give pause for thought. The fact that they published comments such as these also demonstrates that the suggestion that Hobbes might have written in support of the parliamentarians was not so outrageous at the time that it would not be taken seriously. (Today the suggestion would not be taken seriously at all by most Hobbes scholars.) And yet, these men were not fools and they understood more about the political climate of the time than we possibly can. And so it is reasonable to at least throw open the assumption of Hobbes’s royalism to further examination.

Defining royalism First, it might be helpful to define the term royalist. One way to define royalism is in reference to those people who supported Charles I and his rule against the parliamentarians in the period just before and during the Civil War. One might add to this, support for Charles II and his claim to the throne after Charles I’s execution in 1649. Alternatively, one could define a royalist as someone who adhered to some or most of the tenets of royalist political thought. This is less easy to pin down than the first but can usually be taken to include at least support of absolutism in some sense.1 ‘Like The Elements and De Cive, Leviathan was a broadly royalist work . . . In Leviathan, Hobbes did not attenuate his absolutism . . .’ (Sommerville in Sorell ed., 1996, p. 259). One or the other of these definitions is usually assumed in the comments that are made about Hobbes’s allegiances. Martinich, for example, assumes the first definition, as above (with an added implication of the second, perhaps), while Sommerville assumes the second. Often the two are conflated, as they are with Clarendon who, as well as accusing Hobbes of publishing ‘false and evil doctrines’, as above, also accuses him of actually supporting Cromwell. ‘. . . [I]t could not reasonably be expected, that such a Book [Leviathan] would be answer’d in the time when it was publish’d, which had bin to have disputed with a Man that

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commanded thirty legions, (for Cromwell had bin oblig’d to have supported him, who defended his Usurpation)’ (Clarendon, 1676, p. 5). On the other hand there are those like Filmer, whose arguments support Hobbes being defined as a royalist under one definition and anti-royalist under the other. In Filmer’s view, Hobbes supported the king while failing to support some of the central tenets of royalist thought. With no small content I read Mr. Hobbes’s book De Cive, and his Leviathan, about the rights of sovereignty, which no man, that I know, hath so amply and judiciously handled: I consent with him about the rights of exercising government, but I cannot agree to his means of acquiring it. It may seem strange I should praise his building, and yet mislike his foundation; but so it is, his Jus Naturae, and his Regnum Institutivum, will not down with me: they appear full of contradiction and impossiblities; a few short notes upon them, I here offer, wishing he would consider whether his building would not stand firmer on the principles of Regnum Patrimoniale . . . (Filmer, 1995, p. 1) Filmer is not accusing Hobbes of deliberately arguing against support of the king but rather of failing to provide a thoroughly convincing argument for absolute sovereignty by mixing his arguments with ‘contradictory’ principles, such as placing the origin of sovereignty in the people rather than in God.

Personal allegiances It is difficult to glean enough evidence from Hobbes’s personal life to be absolutely sure about his political allegiances, although some commentators have sought to do exactly that. His close personal connections with the Cavendish family, who became the Earls of Devonshire, one of the most important aristocratic royalist families at the time, his appearances at court, his collection of the Forced Loan,2 the fact that he was put forward as a candidate for Parliament in 1640 by the Earl of Devonshire, his tutelage of the young Prince of Wales in exile and his pension from the king (Charles II) after the Restoration; these events and relationships are all seen as pointing to

Examining the Orthodoxy 15

royalism by association. The danger with this approach, perhaps, is the assumption that tasks undertaken by Hobbes as part of his duties for his employers, the Earls of Devonshire, and relationships maintained by Hobbes in his professional and private life are taken to reflect his own personal, political beliefs. The fact that in many cases there does seem to be a ‘fit’ between the political beliefs of his employers and his own political writings makes it all the more tempting to assume a blanket agreement between the two. The evidence for such a marriage of political opinion, however, is not quite as conclusive as one might expect. Among his contemporaries he was not always seen as a royalist, as I have mentioned above, and Hobbes himself said little during the period of the Civil War that would categorically place him in the royalist camp. As Quentin Skinner has remarked: ‘Hobbes usually preserved a lofty silence over all debate about his political thought’ (Skinner, 1965, p. 214).3 After the Restoration Hobbes did claim to have been loyal to the king and attempted to rebut those who accused him of having supported Cromwell. I shall say something about these denials below, but first I shall consider the evidence from his life before and during the Civil War. The fact that Hobbes associated a great deal with close allies of Charles I before and during the Civil War is both illuminating and confusing. He was financially and personally indebted to them and probably counted some of them among his friends. At the same time he was not one of them. His extraordinary intellectual gifts and personable nature allowed him the privilege of mixing with many of the most important and influential Englishmen of his time, many of whom supported the king. How much of an insight this gives us into his political beliefs, however, is questionable. If he was little more than an apologist for the king, as some suggest, why did he not write openly in defence of divine right theory as Filmer did? Why did he not declare himself publicly as a royalist before or during the Civil War? Why did he include in Leviathan passages that he must have known would enflame other royalists by the apparent endorsement of principles that were at the centre of the arguments of the parliamentarians? All of these questions can be answered in several ways. It could be for philosophical reasons that Hobbes did not defend the divine right of kings, as Sommerville suggests. ‘He could not afford to admit the

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Reclaiming the Rights of the Hobbesian Subject

truth of patriarchalism of the Filmerian variety, for it was wholly incompatible with his system’ (Sommerville, 1992, p. 71n). In the effort to keep his theory consistent he may not always have been able to say what the royalists wanted to hear. Or there could have been reasons of protection, of wanting to disguise his royalist partisanship for fear of its possible repercussions regarding his future safety.4 Or, it is possible that, also for reasons of his own well-being, he did not want to antagonise the family that had supported him. Hobbes had been given a home and a living by a great royalist family from the age of twenty. His association with the Cavendish family had lifted him out of the lowly position he had been born into and given him a life that most intellectuals could only dream of. He met and exchanged ideas with the most important thinkers of his time across a range of subjects, both in England and on the Continent. He had, by middle age, security and leisure enough to concentrate much of his time on his own writing and it would be naïve to imagine that he did not consciously value the continuing good opinion of his mentors. Or of course there is the possibility that he did not wholly support the royalist cause, in terms of political principles, even though he expressed feelings of sympathy and personal loyalty towards the king and his supporters. Or he may have changed some of his beliefs between the time he wrote the Elements of Law and the time he wrote Leviathan. It is certainly the case that in Leviathan he argues against some of the central tenets of royalist thought, so by that time, if he can still be called a royalist, he held such unconventionally royalist views that the label becomes almost redundant, telling us very little about his political beliefs.

Autobiographies and private correspondence Hobbes’s autobiographies and private correspondence do not make absolutely clear his political allegiances in the period up to and, particularly, during, the Civil War. There are some references in his verse autobiography to his ‘defense o’th’King’s prerogative’ (v.a. 260, in Hobbes, 1994a, p. lx) and to ‘The King’s Defense and Guard’ (ibid., v.a. 275) and Charles II’s ‘Right to England’s Scepter undenied’ (ibid., v.a. 218, p. lix), but of course the autobiography was written long after the Restoration of the monarchy in 1660. It was clearly to his own personal advantage at that time to say that he was and always

Examining the Orthodoxy 17

had been loyal to the king. There are no remarks that I can find in his surviving correspondence that overtly state a commitment to the royalist cause. (Although letters have been lost and Hobbes is said to have destroyed some, see Aubrey’s Life of Hobbes, 14 [I 339] in Hobbes, 1994a, p. lxviii.) There are some references that are fairly unambiguous, however, and these imply that Hobbes was perceived and perceived himself as loyal to the king. Describing his reasons for leaving England for Paris just before the war, in a letter to Viscount Scudmore, Hobbes says: ‘The reason I came away was that I saw words that tended to aduance the prerogative of kings began to be examined in Parlament. And I knew some that had a good will to have me troubled, and might for any thing I saw in their honestyes make both the wordes and the witnesses. Besides I thought if I went not then, there was neuerthlesse a disorder coming on that would make it worse being there than here’ (Malcolm ed., 1994, Vol. I, p. 115). Aubrey again recounts, ‘he told me that Bishop Maynwaring (of St. David’s) preach’d his doctrine; for which, among others, he was sent prisoner to the Tower. Then thought Mr. Hobbes, ’tis time now for me to shift for myself, and so withdrew into France and resided in Paris’ (Hobbes, 1994a, p. lxvii). The doctrine to which he refers is that given in the Elements of Law, and Maynwaring was a staunch royalist, so it seems that Hobbes saw the Elements of Law as a work that would be interpreted as royalist and therefore one that put him in danger from Parliament after 1640. Here then, is some strong evidence for saying that Hobbes did see himself as a royalist just before the outbreak of war. At times when one might expect a response to the dramatic political events of the Civil War, however, such as the execution of Charles I in 1649, or the Restoration in 1660, there are no comments in the surviving correspondence. He does mention in a letter to Gassendi in 1649 that he is preparing to return to England: ‘I am in fairly good health for my age, and I am certainly looking after myself, preserving myself for my return to England, should it happen by any chance’ (Malcolm, 1994, Vol. I, p. 179). This letter was written less than eight months after the execution of Charles I at a time when the monarchy and the House of Lords had been abolished and England declared a republic. If Hobbes had any misgivings about returning to England and making a promise of obedience to this new regime, he said nothing, at least in this letter. It has been suggested

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that in April 1649 he fully expected the future Charles II to succeed in his efforts to defeat the parliamentary forces and restore the monarchy (Tuck, 1993, p. 323) and that it was with this in mind that he planned his return to England. Even if he did believe this, however, there is little reason to think that he could have been confident of acceptance at the court of a restored Charles II when he had just been rejected by Charles in St Germain.5 In addition, it is hard to believe that he could have felt so confident of a royalist victory. At the time Charles refused to see Hobbes in October 1651 he (Charles) had just returned from England after the resounding defeat of the royalists at Worcester in September. By the time Hobbes actually left for England in late 1651 or early 1652 (according to Malcolm, Hobbes left Paris in mid-December 1651 and travelled to England shortly afterwards [Sorell ed., 1996]) there could have been little hope of a royalist victory. On his return to England, moreover, Hobbes submitted to the new republican government by taking the ‘Engagement’, a promise of obedience required of all adult males since 1650.6 He knew this would be required of him and again, there is nothing to suggest that he had any personal difficulty in doing so. The events of Hobbes’s personal life, up to the outbreak of war, may not provide an absolutely definitive answer to the question, ‘Was Hobbes a royalist?’ in the first sense defined above as support for Charles I and his rule. On the other hand, most of the evidence from this period does point towards royalism, particularly when we take into account his comments about the Elements of Law and the response to it. The next period of Hobbes’s life, the time of his exile in Paris, from 1640 to 1651, which took him through the Civil War and into the first two years of the Commonwealth provides less concrete evidence of his own political views. All we have are the facts of his continuing associations and friendships with leading royalists like the Earl of Newcastle, his relationship with the court in exile and his tutoring of the young Charles and of course his reworked political theory, Leviathan, written in the last year or two of this period and published in England in 1651 (Tuck, 1993). Leviathan, as mentioned above, was seen by some royalists as a justification of the rebellion; others saw it as staunchly royalist in its main argument but as containing a way for those who had loyally supported Charles I through the Civil War to submit to the new government and try to regain

Examining the Orthodoxy 19

estates lost during the Civil War (Leviathan, p. 719). Some who did this were able to regain their estates and fortunes. As Martinich notes, this strategy was particularly important for the Earl of Devonshire, ‘who had made peace with Parliament even before the death of the king and thereby saved his estates from confiscation’ (Martinich, 1999, p. 224). The fact that Leviathan caused such controversy on the question of its political interpretation makes this period one where Hobbes’s exact political beliefs are particularly difficult to ascertain.

After the Restoration – Protesting too much? In the years after the Restoration Hobbes did state, in retrospect, his support for Charles I and denied having supported Cromwell. Such demonstrations of retrospective support for the winning side should always be treated with some scepticism, but are worth looking at nonetheless. I have already mentioned above some of the statements given in his autobiographies. He also wrote an essay, in the third person, with the title Considerations upon the Reputation, Loyalty, Manners and Religion of Thomas Hobbes (1680; first published in 1662 under a slightly different title; Molesworth, EW4, pp. 409–440) in which he specifically addressed the accusation that he had written ‘in defence of Oliver’s title’. In this work he wrote first about the Elements of Law, his first political work that circulated in manuscript form in 1640 two years before the Civil War began. When the Parliament sat, that began in April 1640, and was dissolved in May following, and in which many points of the regal power, which were necessary for the peace of the kingdom, and the safety of his Majesty’s person, were disputed and denied, Mr. Hobbes wrote a little treatise in English, wherein he did set forth and demonstrate, that the said power and rights were inseparably annexed to the sovereignty; which sovereignty they did not then deny to be in the King; but it seems understood not, or would not understand that inseparability. Of this treatise, though not printed, many gentlemen had copies, which occasioned much talk of the author; and had not his Majesty dissolved the Parliament, it had brought him into danger of his life. (Molesworth ed., 1839, EW4, p. 414)

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Reclaiming the Rights of the Hobbesian Subject

Here Hobbes seems to be saying that the Elements of Law had been written in defence of the king’s sovereignty. He goes on: He was the first that had ventured to write in the King’s defence; and one, amongst very few, that upon no other ground but knowledge of his duty and principles of equity, without special interest, was in all points perfectly loyal. (Ibid.) At face value this is a clear statement of loyalty to Charles I, and this interpretation can be supported by the doctrine that Hobbes outlines in the Elements of Law, particularly in relation to his insistence that individuals give up their right of resistance to the sovereign when they empower him. This power of coercion, as hath been said . . . consisteth in the transferring of every man’s right of resistance against him to whom he hath transferred the power of coercion. It followeth therefore, that no man in any commonwealth whatsoever hath right to resist him, or them, on whom they have conferred this power coercive. (De Corpore Politico, xx, 7, in Hobbes, 1994b, p. 112) This does sound like a description of the institution of a sovereign who will have absolute power over his subjects and therefore fits easily with most standard royalist arguments of the time. In Leviathan, however, Hobbes has changed his argument on resistance in the most fundamental way. In Chapter 14 he states, ‘. . . a man cannot lay down the right of resisting them, that assault him by force, to take away his life’ (Leviathan, p. 192). The question of the right to resist – what Hobbes means by it, its relationship to the right to defend one’s body from attack and its application to the sovereign’s power – is a complicated one and will be addressed in some detail in Chapters 3 and 4. For now, it is important to note that in Leviathan, in passages such as that above, Hobbes argues that the individual subject cannot give up her right of resistance and therefore she retains it, even against the sovereign. This illustrates a crucial change in the theory from the Elements of Law to Leviathan.7 In the Elements of Law Hobbes states unequivocally, as above, that every man does transfer his right

Examining the Orthodoxy 21

of resistance to the sovereign and that, therefore, no man has the right to resist the sovereign. It is also the case that in Leviathan Hobbes adds in the Review and Conclusion the principle that a subject may justifiably submit to another sovereign ‘when the means of his life is within the Guards and Garrisons of the Enemy’ (Leviathan, p. 719). In other words, he may cease to obey his sovereign if the sovereign has been conquered. This implies that the subject may judge when his life is no longer being protected by his sovereign. With evidence such as this, that Hobbes changes his position on some principles that are central for royalism, in Leviathan, he may be being disingenuous when he quotes from the Elements of Law to back his response to the accusations that he supported Cromwell’s side in the Civil War. Hobbes does also defend Leviathan in the Considerations . . ., when he turns from defending the Elements of Law to answering ‘that other charge, that he writ his Leviathan in defence of Oliver’s title’, and here he defends his intentions first by pointing out that when he was writing Leviathan Cromwell was not yet Lord Protector. What was Oliver, when that book came forth? It was in 1650, and Mr. Hobbes returned before 1651. Oliver was then but General under your masters of the Parliament, nor had yet cheated them of their usurped power. For that was not done till two or three years after, in 1653, which neither he nor you could foresee. What title then of Oliver’s could he pretend to justify? (Hobbes, 1839, EW4, p. 420) Of course Hobbes could still have supported Cromwell’s victory against the king during these years and he predicts that his defence will not satisfy his accusers and puts the objection into their mouths: ‘But you will say, he placed the right of government there, wheresoever should be the strength; and so by consequence he placed it in Oliver’ (ibid.). Hobbes then asks rhetorically and with some irony why he was never thanked by Parliament or Cromwell for this support if it was true and goes on to say that he had in fact written ‘in the behalf of those many and faithful servants and subjects of his Majesty, that had taken his part in the war, or otherwise done their utmost endeavour to defend his Majesty’s right and person against the rebels’ (ibid., pp. 420–421). These subjects were forced, after the

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Reclaiming the Rights of the Hobbesian Subject

king’s defeat, ‘to promise obedience for the saving of their lives and fortunes; which in his book he hath affirmed they might lawfully do’ (ibid.). He expands on this defence for several pages and then refers to his falling out with the future king. ‘Perhaps you will take for a sign of Mr. Hobbes his ill meaning, that his Majesty was displeased with him. And truly I believe he was displeased for a while, but not very long’ (ibid., p. 424). He was assured by many people, he says, that ‘his Majesty had a good opinion of him’ and ‘testified his esteem of him in his bounty’. Here Hobbes is probably referring to the pension of one hundred pounds a year that Charles II sometimes paid him after the Restoration. And it is true that Charles, having refused to see him at St Germain, accepted him again at court, after the Restoration. How should these denials by Hobbes be interpreted? If we accept what he is saying in the Considerations . . . at face value, then we must conclude that his loyalty, at least for the period of the Civil War, lay with the king. And it is the case that before 1650 the evidence seems to be stronger for royalism than otherwise. After 1650 the picture is more complicated. It is partially clouded by his own admission (in 1662) of having (in Leviathan) justified a switch in allegiance to Cromwell’s regime, and also perhaps by his return to England and taking of the Engagement and by writing and publishing a book that would cause royalists like Bramhall, Filmer and Clarendon to accuse him of, at the very least, endangering the royalist cause and at worst, as above, of supporting Cromwell and Parliament. After 1650, though, it also becomes less clear what being a royalist entails. Royalists could (and did) argue for any number of strategies that might include serving under the Rump8 in order to be in a strong position to help restore the throne to Charles II at a later date (Martinich, 1999, pp. 222–223). So, the justification of a switch of allegiance to the new government does not necessarily imply a lack of loyalty to the royalist cause. At the same time, those who put forward such justifications were in danger not only of alienating royalists both at home and on the Continent but also, as in the case of Anthony Ascham, the de facto theorist or ‘Engager’, of being assassinated by them (Ascham was assassinated by royalists in Spain in 1650, see Sommerville, 1992, pp. 24–25; Martinich, 1999, pp. 214, 222). And, as Martinich notes, Ascham had quoted Hobbes approvingly, and so it was little wonder

Examining the Orthodoxy 23

that he felt under threat by royalists on the Continent (Martinich, 1999, p. 222). Hobbes also felt under threat by the Catholic hierarchy on the Continent on account of his unconventional religious views, which had reportedly angered Charles’s mother, the Catholic Queen Henrietta, at the exiled court at St Germain. He was already acquiring a reputation for atheism and English Catholics also had him in their sights. There were rumours that it was Catholics in England who had been responsible for turning Charles against him (Sommerville, 1992, p. 25) although Clarendon denied this and claimed it was he who had been responsible ‘for the discountenancing of my old friend, Mr H[obbes]’ (ibid. and see note 5 above). Other members of the English court as well as members of the Anglican clergy were also influencing opinion against him (Martinich, 1999, p. 214). As well as his provocative arguments for a thoroughgoing materialism that include the notion of God as corporeal, Hobbes had also attacked the church in Leviathan and argued for Independency, so making enemies among the Anglican hierarchy as well. And what of the new republican government that Hobbes swore allegiance to on his return to England in 1651–52? If some royalists had accused him of supporting Cromwell’s side in the Civil War how did the new regime respond to him? There does not seem to be direct evidence for any close associations between Hobbes and the new rulers of England but he did live in apparent security under them for the next nine years. As Sommerville puts it: ‘In England Hobbes gained no rewards from the republican government but was largely unmolested by it or by the succeeding regimes of Oliver and Richard Cromwell’ (Sommerville, 1992, p. 25). Tuck goes a little further: ‘His life under the Commonwealth and, later, the Protectorate of Cromwell, was relatively untroubled. He had various friends and supporters under the new regime, of whom perhaps the most interesting was John Selden’ (Tuck, 1989, p. 31). Selden had switched allegiances from Parliament to Charles I in the thirties but was then elected to the Long Parliament after which he supported the parliamentary cause and Independency. I mention these complicating factors to illustrate the difficulty in ascertaining Hobbes’s true beliefs on the big religious and political questions of the day. He was a master of survival and more than survival. He somehow continued to thrive no matter how many vested

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Reclaiming the Rights of the Hobbesian Subject

interests he was perceived as attacking. And when modern Hobbes scholarship is unequivocal in its attribution to him of definite positions and beliefs, on royalism or absolutism or the rights of individuals etc., it can only be because the intervening centuries have allowed the confusions and contradictions to fade out of the picture. In his own time Hobbes was extraordinary for, on the one hand, riling members of almost every powerful, political and religious group, and on the other for mixing more freely and maintaining more friendships and associations within the different groups than seems possible. Whatever Hobbes’s personal feelings of loyalty to the royalist cause might have been, however, it is important to remember the ambiguity of his position. His close ties to the Cavendishes should not be read as equal to membership of an important royalist family. And his intellectual independence should never be underestimated. He moved in and out of various circles with apparent ease, from the royalist leaning group of intellectuals and theologians sometimes referred to as the ‘Tew Circle’9 to royalist generals such as the Earl of Newcastle to the Catholic priest philosophers Mersenne and Gassendi. His close personal and intellectual friendships with the latter two did not prevent him from arguing vociferously against Catholicism in Leviathan (Martinich, 1999, p. 210). Nor did his supposed loyalty to the royalist cause prevent him from being the recipient of praise on his return to England, for having written in support of Cromwell and the new regime. ‘Mr. Hobbes is at London much caressed, as one that has by his writings justified the reasonableness and righteousness of their [the rebels’] arms and actions’ (Edward Nicholas writing to Lord Hatton, from Nicholas Papers, ed., Sir George F. Warner [n.p.: Camden Society, 1886] 1: 284–286, quoted in Martinich, 1999, p. 219). Martinich characterises this view as unfair and absurd given that Hobbes had just tried to present a copy of Leviathan to the future Charles II in France. Another way to look at it is as a demonstration of the ease with which Hobbes was able to create the impression among different groups who were enemies to one another that he was their friend and supporter. And so there might be cause to question such vociferous denials, as those in the Considerations . . . on Hobbes’s part; we might ask whether he protests too much. The denials were, after all, written after the Restoration. Whatever conclusions we reach about Hobbes’s

Examining the Orthodoxy 25

personal loyalty to Charles I and Charles II, however, we shall see, when we look at what he wrote, particularly in Leviathan, that he undermined some central tenets of royalist political thought and allied himself to principles that were anathema to royalists and central to the thinking of parliamentarians and even to radical parliamentarians like the Levellers. It will always be difficult to ascertain Hobbes’s own private beliefs and loyalties. There is conflicting and confusing evidence and the big issues of the period are also complex and hard to unravel. On the question of royalism, I do not think that the evidence is as overwhelming as most recent Hobbes scholarship has assumed. Hobbes’s loyalty to the royalist cause is unlikely to be as strong as it was among his employers, the Cavendish family, and other aristocratic, royalist families, whose loyalties were probably tribal as much as intellectual. Hobbes was not one of them. When these great men of state were sitting discussing politics Hobbes was, with the other secretaries and employees of his ilk, not taking part but sitting in an anteroom, chatting with the others, waiting to be released from duty (Tuck, 1989, p. 4). He did not belong to that tribe or any other, having left behind his family and the social circle he was born into when he went up to Oxford at 15 years of age. The closest thing he had to a social group of his own was perhaps that of the intellectuals around Mersenne in Paris, where he lived a collegiate life for most of his time in exile. These men were committed to intellectual rigour and discovery, the new science and ideas that lifted them out of their potentially conflicting religious and political allegiances and the parochial concerns of those who were more rooted in the social and political institutions of their day. It was in this atmosphere, with something akin to our modern notion of academic freedom, that Leviathan was written. And perhaps this explains, at least in part, why Leviathan is a work that Hobbes’s contemporaries struggled to categorise politically. It employs arguments and language from both sides of the conflict, in a way that muddied the waters for some of his contemporary readers. The evidence of Hobbes’s own beliefs will always be, at best, inconclusive. His private thoughts about royalism remain elusive but what we do have, of course, is what he wrote, and it is to his writing, in the context of the writing of his contemporary political thinkers and pamphleteers, which I will turn in the next chapter.

2 The Political Context – Taking Sides?

Introduction I have been focusing on Hobbes’s relationship to royalism and on his personal political beliefs. I will continue to place Hobbes in his historical context, but now looking at what he actually says, rather than speculating about what he might have thought, in the context of the other political thinkers and theorists who were writing at the time. I shall examine the positions taken on four important political principles or concepts that were highly contested during this period, namely: sovereignty, law, equality and rights. What will become evident is that on at least two out of the four, Hobbes takes up positions closer to the parliamentarians than to the royalists. It has commonly been argued that when Hobbes does seem to be aligning himself with parliamentarian principles or assumptions, he is doing so merely in order to derive his own royalist or absolutist conclusions from them later in his argument. This argument will only work however, if, first, Hobbes’s conclusions really are wholly royalist or absolutist and second, if we are able to reconcile any principles he allies himself to on the way, with his conclusions. If, for example, Hobbes endorses the principle that there are some individual rights that are inalienable and that therefore cannot be given up to the sovereign, this puts some limits on the conclusions that he can then reach. If we were to interpret one of his conclusions as being that in the end individuals should give up all their natural rights to the sovereign, then we would have, at the very least, a serious inconsistency in his argument. One way of making the argument more 26

The Political Context

27

consistent would be to say that if he commits himself to the principle that the right to self-preservation cannot be given up, then this right is maintained even against the sovereign and this in turn implies that the subject does not transfer all her rights to the sovereign and the sovereign is therefore not absolute, at least not in the sense of being irresistible.1 It matters, in other words, what principles Hobbes endorses as part of his argument. If a modern politician were to argue that she supported an unrestricted, unregulated free market, did not think that there should be a welfare state and was a committed socialist, it is unlikely that we would conclude that she had cleverly used liberal, laissez-fair assumptions to draw socialist conclusions. It is far more likely that we would smell a rat in these contradictory statements and either question the sincerity of one or more of them or question the logic of her position. And this is exactly what some of Hobbes’s contemporaries did. Royalist thinkers like Bramhall and Clarendon simply did not trust that a writer who endorsed the notions of natural equality and the inalienability of universal rights to self-preservation and self-defence could really be supporting the case for the authority and right to rule of an absolutist king.

Hobbes’s contemporaries – Political writers There was an outpouring of political theorising and propaganda in the period just before and during the Civil War from thinkers of all political persuasions in England. An examination of this writing, next to Hobbes’s, can, I believe, throw some light on both the political context to which Hobbes was responding and the meaning and significance of some of the principles he allies himself to. I have divided the political writings into five groups of political thinkers who I will refer to as: the Radical Royalists, the Moderate Royalists, the Moderate Parliamentarians, the Radical Parliamentarians and the De Facto Theorists. For the Radical Royalists I will look at Sir Robert Filmer, whose defence of divine right theory in his famous work Patriarcha, places him as an unbending absolutist and unquestioning supporter of Charles I. For the Moderate Royalists I will look at the writings of Edward Hyde, Lord Clarendon, who, as a member of Parliament before the Civil War, was critical of some of Charles I’s excesses in government and supported a certain amount of reform,

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but who, once the war started, swung behind the king and became one of his closest advisers. After the Restoration he became a minister in the new government of Charles II before eventually falling from grace (Rogers, 1995, p. xv). I will also refer to some members of a circle of friends sometimes referred to as the Tew Circle.2 For the Moderate Parliamentarians I shall include both the ‘Independents’ of the parliamentary army such as Cromwell and Ireton and the more moderate of the pro-parliamentary political thinkers such as Philip Hunton, Henry Parker and Charles Herle. The Radical Parliamentarians I will refer to include the section of the army that comprised the Levellers and Leveller thinkers such as John Lilburne and Richard Overton, as well as the thinkers of the even more radical ‘Diggers’, particularly Gerrard Winstanley. Finally I shall look briefly at what have come to be known as the de facto theorists3 or sometimes the ‘Engagers’. These are a group of writers who backed the taking of the ‘Engagement’, the promise of allegiance to the new republican government of the Rump after the defeat and execution of Charles I and the abolition of the monarchy and the House of Lords.4 They took a real politic approach towards the new government and theorised that a switch in allegiance could be justified to whoever actually held power.

Radical royalists Filmer’s Patriarcha, though only published posthumously in 1680, is thought to have been written and circulated in manuscript form between 1635 and 1642 and actually written even earlier.5 In it he defends divine right theory and attacks the view ‘first hatched in the schools’ that ‘Mankind is naturally endowed and born with freedom from all subjection, and at liberty to choose what form of government it please, and that the power which any one man hath over others was at the first by human right bestowed according to the discretion of the multitude’ (Filmer, 1991, p. 2). This view, he says, ‘contradicts the doctrine and history of the Holy Scriptures, the constant practice of all ancient monarchies, and the very principles of the law of nature’ (ibid., p. 3). From this mistaken doctrine has been drawn the ‘perilous conclusion’ that ‘the people or multitude have power to punish or deprive the prince if he transgresses the laws of the kingdom’. Filmer is attacking those who argued that sovereignty comes

The Political Context

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from the people and what is said to follow from that, namely, the proposition that there is a right to rebellion on the part of the subjects. Such a view, Filmer argues, stems from ‘the supposed natural equality and freedom of mankind and liberty to choose what form of government it please’ (ibid.). This is an ‘erroneous principle’ whose effective contradiction would lead to the collapse of the ‘vast engine of popular sedition’ (ibid.). Filmer also wrote a book directed specifically against Leviathan (which was also against two other works) entitled Observations Concerning the Original of Government, upon Mr. Hobs Leviathan, Mr. Milton against Psalmists, H. Grotius ‘De Jure Belli’ and published in London by R. Royston in 1652. In it he attacks Hobbes’s view of sovereignty as one that assumes that people are sprung from the earth-like mushrooms, with no attachments or obligations to one another. In fact, he says, we have natural obligations arising out of our roles as children and parents, and he uses this to criticise the notion of the right of nature described by Hobbes (Filmer in Rogers ed., 1995, p. 4). Filmer argues against the principle of ‘natural equality’ by locating the rights of kings in a line of patriarchal power handed down by God to Adam and succeeding patriarchs. A natural subjection of people to king is thus posited, analogous to the natural subjection of child to father, ‘this subjection of children is the only fountain of all regal authority, by the ordination of God himself’ and so ‘it follows that civil power not only in general is by divine institution, but even the assignment of it specifically to the eldest parent, which quite takes away that new and common distinction which refers only power universal as absolute to God, but power respective in regard of the special form of government to the choice of the people’ (Filmer, 1991, p. 7). On the question of how sovereignty is transferred Filmer states that the Crown never devolves to the people. In cases where there is not a straightforward heir the crown will go to ‘the prime and independent heads of families’ (ibid., p. 11). So, according to Filmer, sovereignty lies solely and completely in the monarch and is bestowed by God. On the rights and duties of the sovereign, Filmer says, ‘the king, as father over many families, extends his care to preserve, feed, clothe, instruct and defend the whole commonwealth. His wars, his peace, his courts of justice and all his acts of sovereignty tend only to preserve and distribute to every subordinate and inferior father, and to their children, their

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rights and privileges, so that all the duties of a king are summed up in an universal fatherly care of his people’ (ibid., p. 12). Filmer goes on to say that any theory which says that the people may choose their form of government is a paradox which he likens to the notion that a father could have his power given to him by his children. Monarchy is the form of government intended by God. To those who would support democracy Filmer points to what he sees as the weaknesses in the democracy of Rome, that it only lasted for about four hundred and eighty years, that there were confusing shifts in the form of government, that it was rife with sedition that led to civil wars and that it could only extend to one city. The alternative of a ‘mixed monarchy’ whereby sovereignty is divided between king, Lords and Commons is given short shrift by Filmer. It is a notion that bears directly on arguments of the time concerning the power of Parliament and whether it shared in the ‘sovereignty’ of the king. Filmer dismisses the idea as an ‘impossibility’ and ‘contradiction’ which converts the government into a democracy taking away from the king his sovereignty. Only if the king preserves the absolute power in himself using the assembly merely for advice, can the monarch remain sovereign. If the nobles and commons each have a voice as well as the king, the nobles and commons together could ‘make a law to bind the king, which was not yet seen in any kingdom but if it could the state must needs be popular and not regal’ (ibid., p. 32). On the subject of law Filmer stresses that kings are above the law and argues that it is one of the great mistakes of those who say that kings get their power from the people that they make the king subject to positive laws. A king makes the law and is tied only to God’s law or the law of nature in his exercise of his lawmaking power. ‘For as kingly power is by the law of God, so it hath no inferior law to limit it. The father of a family governs by no other law than by his own will, not by the laws or wills of his sons or servants’ (ibid., p. 35). The king is not obliged to uphold all the written laws of the kingdom but only those he judges to be ‘upright, … according to the equity of his conscience joined with mercy …’ (ibid., p. 43). The king is also above the common law. Filmer argues that common laws are just customs which at some point became laws which they could only have done by the command of a superior. And as the first power is the kingly power the common law must originally have been the

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‘laws and commands of kings at first unwritten’ (ibid., p. 45). In other words the king is above the common law just as he is above statute law and may change it as he sees fit. The subject, on the other hand, is always obliged to obey the commands of the sovereign even if these go against his (the sovereign’s) laws. Before laws were written, Filmer argues, the word of the king was law. Positive law therefore comprises the commands of the king, written down for the convenience of both king and people. The power to make law is the defining mark of a king. ‘That which giveth the very being to a king is the power to give laws; without this power he is but an equivocal king’ (ibid., p. 44). Of laws made in Parliament, Filmer says that they may be suspended by the king for reasons known only to him. The proper role of Parliament in the making of laws, according to Filmer, is merely to advise and inform the king and thereby to strengthen the laws which the king ordains. The laws themselves can only be made by the king. ‘[I]n parliament all statutes or laws are made properly by the king alone’ (ibid., p. 57). On the question of rights, Filmer says, not surprisingly, that rights are to be preserved and distributed by the king. All natural rights are to be given up to the king. If natural rights are retained by the people there will be a consequent loss of sovereignty for the king or worse, ‘… all those liberties that are claimed in parliaments are the liberties of grace from the king, and not the liberties of nature to the people. For if the liberty were retained it would give power to the multitude to assemble themselves when and where they please, to bestow sovereignty and by pactions to limit and direct the exercise of it …’ (ibid., p. 55). His response to Hobbes’s contention in Chapter 21 of Leviathan that the rights to selfdefence and self-preservation are retained by individuals, is to say that such ‘doctrines’ are ‘destructive to all governments whatsoever’ (ibid., p. 195).

Moderate royalists Moderate royalists such as Edward Hyde, who became the Earl of Clarendon, rejected some of the more extreme and absolutist elements of Filmer’s defence of the monarchy, while they still supported many of the central tenets of the monarchist position. According to Christopher Hill, Clarendon ‘rejected theories of divine right, of kings

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or bishops, and was critical of the conduct of the Laudian hierarchy’ (Hill, 1967, p. 202). And his backing of some reform to combat the excesses of Charles I (when Clarendon sat in Parliament during the early years of Charles’s reign) confirms this view. Many remarks of Clarendon’s do, however, sound closer to divine right theory than Hill’s comment implies – ‘all power was by God and Nature invested into one Man’ (Clarendon, 1676, p. 72), for example. And when the country polarised, going into the Civil War, his royalism was unflinching. He backed the king in the wars, became Charles II’s leading minister after the Restoration and wrote a book attacking Leviathan. In this book, A Brief View and Survey of the Dangerous and Pernicious Errors to Church and State in Mr. Hobbes’s Book, Entitled Leviathan, he accuses Hobbes of supporting Cromwell, of influencing or being influenced by the Levellers (ibid., p. 181), and of introducing under the guise of support for a powerful sovereign, doctrines such as the right to defence against the sovereign that were ‘utterly inconsistent with the security of prince and people’ (ibid., p. 87). Clarendon’s royalism is as deep-seated as Filmer’s even if it stops short of the more extreme principles of divine right theory. The suggestion that people might be equal, for example, is seen as absurd by Clarendon. He takes for granted a natural hierarchy in society and in government. ‘[I]n all well instituted Governments, … the Heirs and Descendents from worthy and eminent Parents, if they do not degenerate from their virtue, have bin alwaies allowed a preference and kind of title to emploiments and offices of honor and trust’ (ibid., pp. 182–183). Hobbes’s suggestion that such privileges should be given only as a recognition of ability is treated with contempt by Clarendon and dismissed as being like the pronouncements of ‘a faithful leveller’. Indeed, Clarendon lists Hobbes’s egalitarianism as just one of his false assumptions, saying ‘he takes many things for granted which are not true; as … that “nature hath made all men equal in the faculties of body and mind”’ (ibid., p. 26). Clarendon is also misrepresenting what Hobbes says on equality, which of course, is not that all men are equal in their faculties but that their differences are not significant and that they should be treated as equals (Leviathan, p. 212 and pp. 385–386). He is similarly outraged by what he sees as the attack on the right of succession by Hobbes, when Hobbes says that the sovereign may choose any successor he wishes. Clarendon accuses Hobbes of,

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… invading the right of all Hereditary Monarchies in the world by declaring, that by the law of nature which is immutable, it is in the power of the present Sovereign to dispose of the succession, and to appoint who shall succeed him in the Government; and that the word Heir doth not of itself imply the Children or nearest Kindred of a man, but whomsoever a man shall any way declare he would have succeed him; contrary to the known right and establishment throughout the World, and which would shake if not dissolve the Peace of all Kingdoms. (Ibid., p. 61) These words demonstrate the distance perceived by some royalists between their position and Hobbes’s. There is a natural hierarchy, monarchs rule by right and sovereignty should be passed by natural succession down a hereditary line. Another point of difference Clarendon sees between himself and Hobbes is on the question of wherein sovereignty lies or originates. Hobbes argues that ‘the sovereign power is conferred by the consent of the People assembled’ (Leviathan, p. 229). Clarendon dismisses the claim in the following way, ‘that which the levelling fancy of some men would reduce their Sovereign to, upon an imagination that Princes have no authority or power but what was originally given them by the People’ (Clarendon, 1676, p. 71). He goes on to argue that if it was really up to a group of equals to confer such power they would not give up their own power to someone who could then use it against them. It cannot be imagined possible in nature, that ever such an assembly of men of equal authority in themselves, will ever agree to make one Man their sovereign with such an absolute Jurisdiction over the rest, as must devest them of all property as well as power for the future; and whereas in truth all power was by God and Nature invested into one Man, where still as much of it remains as he hath not parted with … (Ibid., p. 72) Clarendon’s assertion that all power resides in the monarch and that its source is God and nature, is in direct conflict with any view that says that sovereign power is originally in the people and is then

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given to a monarch or an assembly. Such a view (held by both parliamentarians and Hobbes) raises the question when or how the sovereign power might be retained by the people or devolve back to the people, for example, when a monarch abuses his power. If sovereign power resides solely in the monarch then it is never the people’s, either to give up or to claim back. The people’s obedience to the monarch is then a permanent requirement and the preservation and good of the people is something the monarch should protect according to his judgement, and perhaps according to natural law but not something the people themselves can have any responsibility for or any right to assert. The sovereign power, according to Clarendon, … where still as much remains as he hath not parted with, and shared with others, for the good and benefit of those (and the mutual security of both) for whose benefit it was first intrusted to him; the rest, which is enough, remains still in him, and may be applied to the preservation of the whole, against the fancies of those who think he hath nothing but what they have given him; and likewise against those who believe that so much is given him, that he hath power to leave nobody else any thing to enjoy; the last of which are no less enemies to Monarchy than the former (Ibid.) On the question of law, Clarendon, himself a lawyer by profession, criticises Hobbes for making the sovereign too powerful and for being arrogant in his presumption of defining law without reference to experts in the field. ‘[C]ontrary to the notions of all other men, he must introduce a notion of Law, contrary to what the world hath ever yet had of it’ (ibid., p. 119). He will not disagree with Hobbes on the principle that it is the sovereign who makes the law but he does object to the ease with which Hobbes implies that a sovereign may undo the laws he has made. He saies the Soveraign is the only Legislator: and I will not contradict him in that. It is the Soveraign stamp, and Royal consent, and that alone, that gives life and being, and title of Laws, to that which was before but counsel and advice: and no such constitution of his can be repeal’d and made void, but in the same manner, and with his consent. But we say, that he may prescribe

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or consent to such a method in the form, and making these Laws, that being once made for him, he cannot but in the same form repeal, or alter them; and he is oblig’d by the Law of justice to observe and perform this contract, and he cannot break it, or absolve himself from the observation of it, without violation of justice. (Ibid., pp. 121–122, my emphasis) Clarendon stresses that Hobbes has gone too far in emphasising the sovereign’s complete independence from the laws that have been made. He criticises Hobbes’s deduction from his definition of law that ‘the sovereign is Sole Legislator, and that himself is not subject to Laws, because he can make, and repeal them: which in truth is no necessary deduction from his own definition’ (ibid., p. 119), and he gives as an example an arbitrary repealing of an established law such as that of male primogeniture, which, if changed, would cause utter confusion: Doth Mr. Hobbes believe that the word of the King hath power to change this course, and to appoint that all the sons shall divide the Estate, and the Eldest Daughter inherit alone? and must not all the confusion imaginable attend such a mutation? all governments subsist and are establish’d by firmness and constancy, by every mans knowing what is his right to enjoy, and what is his duty to do: and it is a wonderful method to make this Government more perfect, and more durable, by introducing such an incertainty, that no man shall know what he is to do, nor what he is to suffer, but that he who is sovereign tomorrow, may cancel, and dissolve all that was don or consented to by the Sovereign who was yesterday, or by himself as often as he changes his mind. (Ibid., pp. 123–124) His argument is that while the king makes the law he cannot change or repeal it without going through the processes of receiving advice and going through the formalities that have been established over time. He is arguing that the sovereign is to some extent bound by previous laws and by the role of Parliament in the law-making process, or at least that he cannot change them at will. Law is the word of the king in accordance with the law of nature and yet the word of the king alone cannot alter or repeal the law.

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No Eminent Lawyer hath ever said that the two Arms of a Common-wealth are Force and Justice, the first whereof is in the King, the other deposited in the hands of the Parliament; but all Lawyers know, that they are equally deposited in the hands of the King, and that all justice is administered by him, and in his name: and all men acknowledge that all the Laws are his Laws; his consent and authority only giving the power and name of a Law, what concurrence, or formality soever hath contributed towards it; the question only is, whether he can repeal or vacate such a Law, without the same concurrence and formality … For tho it be confess’d that those old Laws become new by this consent of his, the Laws of the Legislator, that is of that Soveraign who indulges the use of them; yet he cannot say that he can by his word vacate and repeal those Laws, and his own concession, without dissolving all the ligaments of Government, and without the violation of faith, which himself confesses to be against the Law of Nature. (Ibid., pp. 124–125) Clarendon’s view of the law then, is somewhat equivocal. He declares, like Filmer, that the word of the king is law but makes it clear that, unlike Filmer, he does not mean this literally. He supports a more constitutional form of law-making by the sovereign with consultation of experts in the field, an acceptance of the need for consistency and obedience to the body of law that has already been established according to the traditions of the commonwealth.6 On the question of rights, Clarendon, like other royalists, was outraged by the argument that there was a universal right of selfpreservation that entailed a right to resist the sovereign. Clarendon thinks that Hobbes gives too much liberty to the subject on the one hand and too little on the other: [T]ho he (Hobbes) be so cruel as to devest his Subjects of all that liberty, which the best and most peacable men desire to possess, yet he liberally and bountifully confers upon them such a liberty as no honest man can pretend to, and which is utterly inconsistent with the security of Prince and People; which unreasonable Indulgence of his, cannot but be thought to proceed from an unlawful affection to those who he saw had power enough to defend the transcendent wickedness they had committed, tho

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they were without an Advocate to make it lawful for them to do so, till he took that office upon him in his Leviathan … (Clarendon, in Rogers ed., 1995, p. 234) Here again Clarendon is accusing Hobbes of supporting Cromwell, because of his advocacy of the right to self-defence against the king. In a series of publications in the early 1640s, members of the group of intellectuals sometimes referred to as the Tew Circle (as above) attacked the argument being made by parliamentarians such as Henry Parker that the rights of self-preservation or self-defence could be applied to justify resistance to the sovereign. Dudley Digges argues in a pamphlet published posthumously in 16447 that the right to self-preservation is not a law but merely a right of nature which could be given up, just as all other natural rights could be given up. Royalists such as Digges and others of this group used an argument that can be found, for example, in Grotius that individual rights such as the right to self-defence can and should be given up to the sovereign: That private war may be lawful, so far as Natural law goes, I conceive is sufficiently apparent from what has been said above, when it was shewn, that for any one to repel injury, even by force, is not repugnant to Natural Law [Chap. II.]. But perhaps some may think that after judicial tribunals have been established, this is no longer lawful: For though public tribunals do not proceed from nature, but from the act of men, yet equity and natural reason dictate to us that we must conform to so laudable an institution; since it is much more decent and more conducive to tranquillity among men, that a matter should be decided by a disinterested judge, than that men, under the influence of self-love, should right themselves according to their notions of right. (Grotius, 1853, Bk I, Ch. III, I, 2, p. 95, my emphasis) The right to self-defence, as with all natural rights, is alienable and should be given up to the sovereign. Clarendon and other moderate royalists ostensibly advocate a less extreme form of royalism than that of Filmer; the more absolutist stance on law, for example, is toned down by Clarendon to a hybrid of absolutism and constitutionalism. What is clear from the above,

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however, is that on the principles of sovereignty, equality and rights Clarendon is close to divine right theorists. He is anti-egalitarian and he says that sovereignty comes from God and Nature. He argues against the notion of a right to self-defence against the king and takes the general position that all natural rights should be given up to the sovereign.

Moderate parliamentarians The arguments used by the moderate parliamentarians in the 1640s were often not new in themselves but rather new expressions or applications of arguments that had been circulating in the 1620s and 1630s and sometimes even earlier. The ideas of Sir Edward Coke, the former Attorney-General to Queen Elizabeth I and Lord Chief Justice to James I (father of Charles I) were taken up by the next generation and used to strengthen the case for Parliament against the king. Coke had written extensively on English law and particularly on English common law and the English constitution, as mentioned above. He posited a science of law that could decide questions regarding the powers of the king and the liberties of the subject (Sommerville, 1992; Dow, 1985; Burgess, 1996). The common law itself was said to be immemorial and the result of the wisdom and experience of many generations of both subjects and monarchs. English law, or the law of the land (lex terrae), was made up, in Coke’s view, of three things: common law (which was also called common or general custom, or a law of reason); statute law; and (particular or local) custom … although it was not the only type of law that made up lex terrae, common law was, for Coke, the original and the archetype of law. It was the fundamental law of England, and consisted of unwritten immemorial customs. Statute law was essentially parasitic upon common law. (Burgess, 1996, pp. 166–167) Custom was defined by Coke as ‘a Law, or Right not written, which being established by long use, and the consent of our ancestors, hath beene, and is daily practised’ (ibid.). (It is this view of the common law that Hobbes refers to with such contempt in Leviathan.)

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The view of the common law associated with Coke was frequently used by parliamentarian writers to stress the pre-existence, in England, of a body of law in which were enshrined the rights of the people and the prerogatives of their sovereigns. England, they said, is a country ruled by an ancient law and if any particular sovereign violated the law or the rights enshrined in it, they would be breaking that law or overstepping their prerogative. This contrasts strongly with the view of law argued for by Filmer, discussed above, that the sovereign’s command is law and the sovereign himself is above the law. Parliamentarians applied the notion that there were laws that a sovereign should not break or misapply, to justify, first, criticism of Charles I, in the hope of reform, and later, rebellion and civil war against the sovereign. On the 20th January 1649, in the charges brought against Charles I, the king was described in the following way: That the said Charles Stuart, being admitted king of England, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath and office being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties … (Blitzer, 1963, pp. 84–85) Parliamentarians saw the king as subject to laws that were already in place before he was king. And, as we have seen, some moderate royalists such as Clarendon were also sympathetic to this view. This view of the law influences the view of sovereignty. If sovereignty is defined as the absolutist Bodin had defined it, a century earlier, as the power to make law, then the king’s sovereignty is seen by this group as being of a limited kind. Philip Hunton, a moderate parliamentarian, published A Treatise of Monarchie in 1643 (in reply to which Filmer wrote The Anarchy of a Limited or Mixed Monarchy). Hunton argues that England was a mixed monarchy, the theory that the country is governed by a combination of king, lords and commons.8 According to Hunton, sovereignty lies in the combination of the three estates. The king has the power to make law, but only in conjunction with the legislative body of Parliament (Sanderson, 1989, pp. 30–31; Dow, 1985, pp. 16–17), and

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he must rule according to the laws that have been made by the three estates. I conceive and am in my judgement persuaded, that the sovereignty of our Kings is radically and fundamentally limited, and not only in the use and exercise of it: … it is radically limited; for as I showed before, every mixed Monarchy is limited, . . . his sovereignty and our Subjection is legal, that is restrained by Law. ... The very Being of our Common and Statute Laws and our Kings acknowledging themselves bound to govern by them, doth prove and prescribe them limited; for those Laws are not of their sole composing, nor were they established by their sole authority, but by the concurrence of the other two Estates: so that to be confined to that which is not merely their own, is to be in a limited condition. (Hunton, 1643, Part II, Ch. 1, pp. 31–32) Henry Parker, a lawyer who was made secretary to the Commons in 1645, wrote a number of political pamphlets between 1640 and 1644, his most famous being his Observations upon Some of His Majesties Late Answers and Expresses published in 1642. Parker locates sovereignty first in the people: ‘Power is originally inherent in the people, and it is nothing else but that might and vigour which such and such a society of men contains in itself, and when by such and such a law of common consent and agreement it is derived into such and such hands’ (Parker, 1642, p. 1). The power of kings, therefore, is derived from the people, . . . power is but secondary and derivative in Princes, the fountain and efficient cause is the people . . . And hence it appears that at the founding of Authorities, when the consent of societies conveys rule into such and such hands, it may ordaine what conditions and prefix what bounds it pleases, and that no dissolution ought to be thereof, but by the same power by which it had its constitution. (Ibid., p. 2) The king’s power comes from the people and is limited by law. If a king did fail to act in the interests of the people then Parliament could act to restrain the king. Parliament could then act without the

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king, though the circumstances are restricted, that is, only if the king fails to act according to his duty. But under that circumstance, Parliament, it seems, becomes sovereign at least temporarily. It has been argued that Parker was the ‘first genuine theorist of parliamentary sovereignty’ (Burgess, 1996, p. 177) and if he was making Parliament sovereign in the sense of having the last word on the law, without appeal, then it could be said that he was moving beyond Coke (who put common law above everything), or even that he was arguing against Coke. ‘When Coke wrote of the “absolute” authority of parliament he was not advancing a theory of “parliamentary sovereignty” . . . Coke thought of parliament as a sovereign court rather than a sovereign legislator’ (ibid., p. 180). In other words, for Coke it was the law itself that was sovereign rather than the body responsible for its enactment. It is also worth noting that according to Parker and other moderate parliamentarians like Hunton and Charles Herle, sovereignty originates in the people but is given or transferred to the people’s representatives in Parliament. They did not take the more radical step of saying that any power is retained by the ordinary people outside Parliament. As Charles Herle puts it: ‘The Parliament is the people’s own consent, which once passed, they cannot revoke . . . We acknowledge no power can be employed but what is reserved and the people have reserved no power from themselves in Parliament’ (Dow, 1985, p. 18). The arguments that the king’s power and authority were limited by laws and a constitution and possibly by a claim to the sovereignty of Parliament were common on the parliamentary side by the end of the Civil War. In January 1649 the Rump Parliament passed a resolution stating that ‘the people are, under God, the original of all just power: and also . . . the Commons of England in Parliament assembled, being chosen by and representing the people, have the supreme power in this nation’ (ibid., p. 20). The language of the moderate parliamentarians is peppered with references to the ‘interests’ and ‘liberties’ of the English people. But if the English people were held to be sovereign by these writers, it was only in an indirect sense because it was Parliament that not only represented the people but was the people. For Parker, for example, it made no sense to suggest that Parliament could be acting against the interests of the people or could be called to account by them because

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the power that had been given to Parliament could not be retracted by them (Sommerville, 1992, p. 61). So, for these writers, it is more the placing of sovereignty that was disputed than its power. It should be placed in parliament rather than in the king. On equality, the difference between the moderate parliamentarians and their royalist counterparts could be said to consist not so much in the opposite view to the royalists that there is no natural hierarchy but rather that the hierarchy should be extended downwards. They wanted the ‘middling sort’ of gentry, professionals and merchants who made up the Commons to be accepted as the representatives of the people. The ordinary people were not always able to represent themselves and so, according to the moderate parliamentarians, they should rely on their representatives. The following description of the Commons by Parker illustrates the point: That Princes may not be now beyond all limits and Lawes, nor yet left to be tryed upon those limits and Lawes by any private parties, the whole community in its underived Majesty shall convene to do justice, and that this convention may not be without intelligence, certaine times and places and formes shall be appointed for its regiment, and that the vastnese of its own bulke may not breed confusion: by vertue of election and representation: a few shall act for many, the wise shall consent for the simple, the vertue of all shall redound to some, and the prudence of some shall redound to all. (Parker, 1642, p. 15, my emphasis) And in the Putney Debates,9 Ireton makes it clear who the ‘Independents’ thought should be included in the franchise: I think that no person hath a right to an interest or share in the disposing of the affairs of the kingdom, and in determining or choosing those that shall determine what laws we shall be ruled by here . . . that hath not a permanent fixed interest in this kingdom . . . that is, the persons in whom all land lies, and those in corporations in whom all trading lies. (Blitzer, 1963, pp. 66–67)

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On the question of rights, the moderate parliamentarians, such as Parker, defended the right to resist the king. Resistance was justified on the grounds that the king is limited by law and if he breaks the law he can be said to be attacking the people. The people then have the right to defend themselves against the king. Parker puts it in the following way, . . . we must not think that it can stand with the intent of any trust, that necessary defence should be barred, and natural preservation denied to any people; as no man will deny, but that the People may use means of defence, where Princes are more conditionate, and have a sovereignty more limited. (Parker, 1642, p. 20) ... it is not just nor possible for any nation to enslave itself, and to resign its own interest to the will of one Lord, as that that Lord may destroy it without injury, and yet have no right to preserve itself: For since all natural power is in those which obey, they which contract to obey to their own ruine, or having so contracted, they which esteeme such a contract before their owne preservation, are felonious to themselves and rebellious to nature. (Ibid., p. 8) Here Parker is going against the Grotian view, mentioned above, that the right to self-defence must be given up to the sovereign. The moderate parliamentarians argued for the right of self-defence to be retained against the king but in other cases such as that of the people retaining rights against Parliament they argued against the retaining of rights. We are left with a rather confusing picture regarding which rights must be given up to the sovereign and which rights may be retained by individuals. On sovereignty and law the moderate parliamentarians argued for a more constitutional form of monarchy in which the king is limited to some extent by established law and the judgements of Parliament. On equality, this group advocated a shift in the hierarchy so that more power is given to the ‘middling sort’, but they stopped short of any argument for full-blown egalitarianism.

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Radical parliamentarians I The Levellers The Levellers took the ideas of the moderate parliamentarians a stage further and challenged not only the royalists but also many of the assumptions of the moderate parliamentarians. On equality, for example, John Lilburne wrote in 1646: ‘All and every particular and individual man and woman, that ever breathed in the world, are by nature all equal and alike in their power, dignity, authority and majesty’ and he continued, ‘none of them having (by nature) any authority, dominion or magisterial power one over and above another’ (Lilburne, The Free Man’s Freedom Vindicated, 1646, quoted in Dow, 1985, p. 37). This sort of radical egalitarianism, linked to notions of natural rights, was almost as unattractive to the moderates and ‘Grandees’ of the New Model Army as it was to their royalist opponents. Equally radical is the Leveller view of sovereignty, which is said to reside in the people, and through them in their representatives in Parliament. In London’s Liberty in Chains Discovered, Lilburne writes, . . . all lawful powers reside in the people, for whose good, welfare, and happiness, all government and just policies were ordained: and forasmuch as that government which is violent and forced, (not respecting the good of the people, but only the will of the commander) may be properly called Tyranny: (the people having in all well ordered and constituted common-wealths, reserved to themselves the right and free election of the greatest Ministers and Officers of State.) (Lilburne, 1646a, p. 2) Sovereignty originates in the people and is to be transferred to Parliament (specifically the Commons alone, not to a king, even of limited power) by regular elections every two years, or even every year. And certain rights are to be retained by the people. The natural rights to be reserved by the people include freedom of religion, freedom from being drafted into an army and the right of all to be treated equally under the law. (The second of these rights is echoed by Hobbes in Chapter 21 of Leviathan and the third in Chapter 15 [Leviathan, pp. 269–270 & p. 212]. And while he did not

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quite endorse religious freedom he did support freedom of religious thought as long as outward behaviour was conformist [Leviathan, p. 700].) Lilburne writes, … though Kings or Parliaments may confirme unto the people their rights, freedoms and liberties; yet it lies not in their power to take them from them againe when they please; no not at all: because all betrusted powers are (as both Kings and Parliaments, and all other Magistrates whatsoever are,) & ought always to be, for the good of the Trusters, and not for their mischief and hurt. (Lilburne, 1646b, title page) The contrast between the position of the Levellers and that of the moderates or ‘Independents’ on the question of sovereignty is clear in the following response by Cromwell to the Leveller document An Agreement of the People when it was discussed at the Putney Debates. ‘Truly this paper doth contain in it very great alterations of the very government of the kingdom, alterations from that government that it hath been under, I believe I may almost say, since it was a nation …’ (excerpt from the Putney Debates quoted in Blitzer, 1963, p. 49). He goes on to warn the Council of the Officers of the parliamentary army of the ‘confusion’ and ‘absolute desolation’ that may result from such radical changes. On the question of law, the Levellers appealed to the idea of ancient English laws as some of the moderates had done, but again, they took the argument further. The law is seen to come from the sovereign people, as Lilburne writes, [t]he only and sole legislative Law-making power is originally inherent in the people, and derivatively in their Commissions chosen by themselves by common consent and no other. In which the poorest that lives, hath as true a right to give a vote, as well as the richest and greatest; and I say the people by themselves, or their legal Commissions chosen by them for that end, may make a Law or Lawes to govern themselves, and to rule, regulate and guide all their Magistrates (whatsoever) Officers, Ministers, or Servants, and ought not in the least to receive a Law from them, or any of them, whom they have set over themselves, for no other end in the world, but for their better being, and

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meerly with Justice, equity, and righteousness, to execute the Lawes that they made themselves, and betrusted them with. (Lilburne, 1646b, p. 4) The Levellers argued that the laws protecting the freedom of the English people extended not only to Magna Carta and common law but also to those laws that had existed before the Norman Conquest, which event they said, marked the beginning of the oppression of the English people. The laws of the Anglo-Saxons before the invasion were said to be laws that protected their liberties and it was these lost freedoms that they wanted to recover (Wolfe, 1967, pp. 17–18; Dow, 1985, pp. 37–8; Sanderson, 1989, p. 110). Dow describes their view by saying that the Norman Conquest, … represented the enslavement of a free English people and the repression of Anglo-Saxon representative institutions. They regarded the law itself as part of the Norman bondage, and despite appeals to Magna Carta and other enactments they believed the mainstream of the common law had been corrupted and that wide-ranging legal as well as political reform would be necessary to restore the lost rights and liberties of the people. (Dow, 1985, p. 38) The Levellers also appealed to natural law as a check on English laws. Lilburne, for example, defines the ‘fundamental Law of the Land’ as ‘the PERFECTION of reason, consisting of Lawfull and Reasonable Customes, received and approved by the people … But such only as are agreeable to the law Eternall and Naturall’ (Wolfe, 1967, p. 12). On specific rights that remain with the people, the Levellers include the right to change the government if it fails to protect the people as well as those mentioned above. William Walwyn writing in 1645 says, ‘so ought the whole Nation to be free therein even to alter and change the publique forme, as may best stand with the safety and freedome of the people’ (ibid., p. 6). On rights, the Levellers articulated a view of natural rights with the important difference from the moderates that some rights were said to be irrevocable or inalienable. The right to choose one’s religion, the right to be treated equally under the law, the right to choose not to fight a war and the right to defend and preserve oneself were all inalienable. (All of these

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rights are also said to be inalienable by Hobbes, barring the right to choose one’s religion, which, as above, he restricts to the right to private thoughts about religion.) All these liberties are seen as natural rights of individuals that cannot be given up or transferred either to the king or to Parliament. The language of protection, the language of the royalists, is replaced by the language of oppression, as when Overton writes: ‘Wee are resolv’d upon our Natural Rights and Freedoms, and to be enslaved to none, how Magnificent soever, with Rotten Titles of Honour’ (ibid., p. 11). The natural rights of individuals are now seen as best protected when retained by individuals or reclaimed rather than, as the royalists would argue, when transferred or given up to a superior power which is seen to be more capable of protecting them than they are themselves. In the following passage Overton says this about authority that it is, alwayes in the hands of the Betrusted or of the Betrustees, while the Betrusted and dischargers of their trust, it remaineth in their hands, but no sooner the Betrusted betray and forfeit their Trust, but (as all things else in dissolution) it returneth from whence it came, even to the hands of the Trustees: For all iust humaine powers are but betrusted, confer’d and conveyed by ioynt and common consent, for to every individual in nature, is given individuall propriety by nature, not to be invaded or userped by any … for every one as he is himselfe hath a selfe propriety, else could not be himselfe, and on this no second may presume without consent; and by naturall birth, all men are equall and alike borne to like propriety and freedome, every man by naturall instinct aiming at his own safety and weale … Now as no man by nature may abuse, beat, torment or afflict himself, so by nature no man may give that power to another, seeing he may not doe it himselfe … (Overton, An Appeale from the Degenerate Representative Body, 1647, quoted in Tuck, 1979, p. 149) The notion of inalienable natural rights stemming from a natural right over one’s own self has much in common with what Locke was to argue over 40 years later and the argument that just as a man may not destroy himself he may not allow another to destroy him is similar to what Hobbes says in Chapter 14 of Leviathan (p. 192).

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II The Diggers Even more radical than the Levellers were the Diggers, who sought to take over the common lands and form a community that would live off the land, holding it and tilling it in common and sharing the proceeds with the poor and needy. Sometimes calling themselves ‘true levellers’, it is in the writings of Gerrard Winstanley that their philosophy is most clearly presented. He advocated a real ‘levelling’ of society where no honours or privileges would exist except those earned by merit, industry or age. Land and its produce were to be held in common, although houses and their contents would be owned and lived in by individual families. The fruits of the land were to be enjoyed by all (Winstanley, 1973). As with the Levellers, the Norman Conquest is seen as the beginning of the people’s oppression. Winstanley says of the Normans, ‘… when the Norman power had conquered our forefathers, he took the free use of our English ground from them, and made them his servants’ (ibid., p. 275). On sovereignty, Winstanley begins from what sounds like the patriarchal position of Filmer with Adam as the first ‘Governor’, but moves quickly to a democratic form of government. ‘The original root of magistry is common preservation, and it rose up first in a private family: for suppose there were but one family in the world, as is conceived, father Adam’s family, wherein were many persons: Therein Adam was the first governor or officer’ (ibid., p. 314). But, he says, this was by necessity and does not sanction despotic rule. ‘All officers in a true magistracy of a commonwealth are to be chosen officers’ (ibid., p. 317). And these officers ‘are to be chosen new ones every year’ (ibid., p. 319). Sovereignty truly resides in the people, as with the Levellers, but the form of parliamentary democracy suggested is more radically democratic and more participatory than that put forward by the Levellers. On equality, the radical egalitarianism of the Diggers extends to the proposal that there should be no hereditary honours or privileges at all. They supported universal manhood suffrage and as all officers were to be newly elected yearly, there would be no class of governors or administrators. The exceptions to universal suffrage were (first women, presumably), then those who had supported the king or his army or who ‘are interested in the monarchical power and government’ who ‘are neither to choose nor be chosen officers in the commonwealth’ and, rather curiously, another group deemed unworthy of holding

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office ‘yet they may have a voice in the choosing’, namely ‘drunkards, quarrellers, fearful ignorant men, who dare not speak truth lest they anger other men; likewise all who are wholly given to pleasure and sports or men who are full of talk’ (ibid., p. 321). On law, Winstanley appeals to his own version of natural law to define ‘Law in General’ in the following way, ‘the true ancient law of God is a covenant of peace to whole mankind; this sets the earth free to all; this unites both Jew and Gentile into one brotherhood, and rejects none: this makes Christ’s government whole again, and makes the kingdoms of the world to become commonwealths again. It is the inward power of right understanding, which is the true law that teaches people, in action as well as in words, to do as they would be done unto’ (ibid., p. 377). Particular laws should be ‘short and pithy’ and ‘often read’ (ibid., p. 378) so that the people know what they are and ‘[t]he bare letter of the law established by act of Parliament shall be the rule for officer and people, and the chief judge of all actions’ (ibid., p. 379). The natural rights endorsed by the Diggers were extended, from those proposed by the Levellers, to apply to common ownership of land and common ownership of its produce. (Or one could say that the natural right to private property in land was denied by the Diggers.) Other liberties such as liberty to choose a religion, free use of trading and a liberty to satisfy ‘lusts and greedy appetites’ are said to be examples of the wrong kind of freedoms, ‘freedom under the will of a conqueror’ (ibid., p. 294). All these freedoms ‘are freedoms: but they lead to bondage, and are not the true foundation-freedom which settles a commonwealth in peace. True commonwealth’s freedom lies in the free enjoyment of the earth. True freedom lies where a man receives his nourishment and preservation, and that is in the use of the earth’ (ibid., pp. 294–295).

The ‘de facto’ theorists This group of thinkers, writing after the execution of Charles I, sought to justify allegiance to the new regime and to persuade those on both sides that it was now legitimate for them to support and obey the new government. Sometimes called the ‘Engagement theorists’, after the promise of obedience to the new government, as mentioned above, Quentin Skinner has argued that those who had certain arguments in

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common about the legitimacy of submitting to a ‘de facto’ government should be called de facto theorists. He has also argued in the past that there is a strong case for placing Hobbes among these de facto theorists (Skinner, 1972). More recently, however, in both his essay Liberty before Liberalism (Skinner, 1998) and in his fascinating book Reason and Rhetoric in the Philosophy of Hobbes (1996), he has argued for the view that Hobbes had a strong allegiance to the royalists, referring, for instance, to Hobbes’s ‘dislike of Parliaments and his preference for the royalist cause’ (Skinner, 1996, p. 229). The argument of the de facto theorists, simply put, is that allegiance is owed to whatever group or individual has demonstrated the power to keep the peace and protect the people. This defence of the new commonwealth after the Civil War, ‘concentrated on the government’s practical ability, as a matter of fact, to maintain order and enforce obedience rather than on its moral right to do so’ (Dow, 1985, p. 22). Although the scope of this ‘theory’ is not equal to those discussed above, it deserves mentioning, not least because Skinner was persuasive in arguing that some of Hobbes’s writing, for example, in the Review and Conclusion of Leviathan, seems to argue for a de facto theory of obedience. Conquest (to define it) is the Acquiring of the Right of Soveraignty by Victory. Which Right, is acquired, in the peoples Submission, by which they contract with the Victor, promising Obedience, for Life and Liberty … (Leviathan, p. 721) And thus I have brought to an end my Discourse of Civill and Ecclesiasticall Government, occasioned by the disorders of the present time, without partiality, without application, and without other designe, than to set before mens eyes the mutuall Relation between Protection and Obedience; of which condition of Humane Nature, and the Laws Divine, (both Naturall and Positive) require an inviolable observation. (Ibid., p. 728) According to the de facto theorists, sovereignty lies in whatever man or assembly has the power to govern and protect the people. This

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leaves open the question of whether the government should be monarchical, democratic or of some other form. So long as the government can provide security and is strong enough to govern, it can legitimately command the obedience of its citizens. The end of government is said by many de facto writers to be ‘security’ or ‘protection’ or ‘peace’. Then any group or individual who can provide this has a legitimate claim to govern. On the question of law some de facto theorists claim that there can be legitimate submission to an unlawful government (Ascham, 1649), while others try to show that even a usurping power might be considered lawful provided that it maintains ‘the same law and equity which the excluded magistrates ought to have done, if they had succeeded’ (Skinner, 1972, p. 89). Also, as above, if ‘the end of all law and government’ is concerned with ‘the need to preserve our persons and estates’, then a de facto government can also make and enforce law. On rights, Ascham argues that if government breaks down, [o]ur generall rights surely are not yet all lost, though all the world be now trampled over, and impropriated in particular possessions and rights: there yet remains some common right, or naturall community among all men, even in impropriation; so that that which is necessary for any naturall subsistence and necessary to another belongs justly to mee, unless I have merited to lose the life which I seeke to preserve. (Ascham, 1649, Part I, Ch. IV, p. 12) Believing himself to be arguing against Hobbes and Grotius, Ascham makes a plea for the retention of some natural rights: Mr. Hobbes and H. Grotius are pleased to argue severall wayes for obliging people to one perpetuall and standing Allegiance. Grotius supposes such a fixed Allegiance in a people, because a particular man may give himself up to private servitude forever, as among the Jews and Romans. Mr. Hobbes supposes, that because a man cannot be protected from all civil injuries, unless all his rights be totally irrevocably given up to another, therefore the people are irrevocably and perpetually the Governors.

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To these two arguments I answer, that what weight of reason Soever they may have at the beginning of a war, they signify nothing at the end of it. For both of them suppose the ties made to those only who are in possession of us … such a totall resignation of all right and reason, as Mr. Hobbes supposes, is one of our morall impossibilites, … Out of which, and many other arguments, it is evident that our General and Original rights are not totally swallowed up either in the property of goods or in the possession of persons. (Ibid., Part II, Ch. XIII, pp. 121–123) Ascham was then able to argue that rather than being bound to a government that was no longer functioning by a ‘perpetuall and standing Allegiance’ when government broke down, men retained some rights which would enable them to transfer their allegiance to a new de facto government.

Commentary on Table What is shown in Table 2.1 cannot tell us about Hobbes’s argument or his conclusions, nor can it demonstrate in a systematic or detailed way what each faction argues. It only presents in summary form, comments and/or positions held on each issue or concept that are typical for that faction and that have been discussed in a little more detail in the preceding sections. What it does show, that I think is of some interest, is that on some issues that were the subject of passionate debate at the time, Hobbes took up positions or principles that were directly opposed to those of the other royalists and very close to the pronouncements of the parliamentarians and even the radical parliamentarians. It becomes clear when the writings of the political factions are compared directly in this way that Hobbes, at least in Leviathan, is surprisingly close to the parliamentarians and even to the radical parliamentarians in what he says, for example, on the issues of equality and rights. Leaving aside the broader philosophical question of whether his theory as a whole could be said to in any way support the parliamentarian side, we can at least say that on the subjects of equality and rights and also, to some extent, on sovereignty, Hobbes allies himself to principles or assumptions such as the natural equality of men or the origin of sovereignty in the people, that were commonly

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used by non-royalists to support their arguments. The dangers of ‘borrowing’ some of the assumptions used by the parliamentarians are that first, he could then be read as agreeing with them and possibly even supporting their cause (and this was indeed what happened in the case of royalists like Clarendon and Bramhall) and second, he would have to show that granting those assumptions had not committed him to any political principles that would rule out the conclusions he wanted to reach. Of the four subjects I have chosen it is only on the law that what Hobbes says is close to what royalists argue. The law consists in what the sovereign commands, can be changed by the sovereign at will and the sovereign is above the law. On sovereignty, on the other hand, he starts with the assumption that the origin of sovereignty lies in the people. This was an assumption used by parliamentarians against absolutism and criticised by royalists for having disastrous consequences. Filmer, for example, argues that the opinion that the people may choose their government led to the ‘perilous conclusion’, which is ‘that the people or multitude have power to punish or deprive the prince if he transgress the laws of the kingdom’ (Filmer, 1991, p. 3). Clarendon declares that it ‘has been always held as a manifest and undeniable Argument, that sovereigns never had, nor can have their Power from the people’ (Clarendon, 1676, p. 41). On other aspects of sovereignty, such as it being undivided and the sovereign being above the law, Hobbes’s arguments are closer to those supporting royalism and absolutism. What Hobbes has to say about natural equality, is fundamentally opposed to the consensus of opinion on the royalist side. Indeed, Hobbes’s view that despite some differences in ability all men are roughly equal and should be treated equally, seems even more radical than the moderate parliamentarian position. The notion of natural equality is of course an ancient one and was taken up by the parliamentarians to advance their cause. And Hobbes directs some sneering remarks against an ancient opponent of the notion of natural equality when he attacks Aristotle. The inequallity that now is, has bin introduced by the Lawes civill. I know that Aristotle in the first booke of his Politiques, for a foundation of his doctrine, maketh men by Nature, some more worthy to Command, meaning the wiser sort (such as he

Four political concepts – Hobbes and his contemporaries compared. Radical Royalists, Filmer

Moderate Royalists

Hobbes

Moderate Parliamentarians

Radical Parliamentarians

De Facto Theorists

Lies solely in the king, bestowed by God (Filmer 1991, p. 7)

Lies in the king, bestowed by God and Nature (Clarendon 1676)

1. Originally in the people by whose agreement and consent is instituted a sovereign (individual or assembly) 2. Sovereign power lasts only as long as the sovereign provides peace and protection, unclear however, whether or how it reverts to the people 3. Sovereignty is undivided

1. Originally in the people, bestowed upon king and Parliament 2. Limited by law 3. If violated by king then reverts to Parliament 4. Mixed between king, Parliament, law and constitution

Resides in the people and through them in their representatives in Parliament, elected every one or two years (Commons only) (Lilburne 1646, p. 2)

Lies in whatever individual or assembly demonstrates power to secure peace, and govern

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Table 2.1

Law

1. The word of the king 2. Tied only to God and the law of nature 3. Written laws may be repealed or suspended by king without explanation

The word of the king in accordance with the law of nature

1. The command of the sovereign in accordance with the laws of nature 2. The sovereign ‘is not Subject to the Civill Lawes’ (Lev. p. 313) and may change them 3. ‘The Law of Nature and the Civill Law, contain each other and are of equall extent’ (Lev. p. 314)

1. The Common law and the Constitution and the Natural Law 2. The sovereign can make laws as long as they do not violate the above

1. The commands of the de facto government 2. Some de facto theorists say that a usurping power may be considered lawful provided that it maintains ‘the same law and equity which the excluded magistrates ought to have done, if they had succeeded’ (Skinner 1972, p. 89) (continued )

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1. The Ancient Laws of England pre1066, Magna Carta, Natural Law and approved customs that do not violate the law of nature 2. The lawmaking power originally in the people and derivatively in Parliament

55

Radical Royalists, Filmer

Moderate Royalists

Hobbes

Moderate Parliamentarians

Radical Parliamentarians

De Facto Theorists

1. Equality is an ‘erroneous principle’ (Filmer 1991, p. 3)

1. There is a natural hierarchy (Clarendon 1676, pp. 182–3) 2. It is ‘not true’ that ‘nature hath made all men equal in the faculties of body and mind’ (ibid., p. 26)

1. ‘Men by nature Equall’ (Lev. p. 183). The differences between people are not so great that anyone or any group has a special claim to any benefit 2. Equity–all should be dealt with equally according to the law of nature 3. ‘The inequality that now is, has bin introduced by the Lawes civill’ (Lev. p. 211)

1. Moderate 1. Radical 1. Power can egalitarianism– egalitarianism– change The hierarchy all men and hands but to be extended women ‘are by must always to include the nature all be obeyed ‘middling sort’ equal and alike 2. Francis Rous of people in power, adapts 2. The ordinary dignity, Romans 13 people to be authority, to ‘we must represented in dominion or obey whatParliament by magisterial ever powers those better power …’ are in a qualified to (Lilburne position to represent 1646, The Free command them ‘a few Man’s Freedom obedience’ shall act for Vindicated for anyone many, the in Dow 1985, excelling in wise shall p. 37) power must consent for have the simple’ received it (Parker 1642, from God p. 15) (Rouse, in Dow 1985, p. 23)

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Equality (natural and moral)

(continued)

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Table 2.1

Rights

1. All natural rights to be given up to the king 2. Rights to be preserved and distributed by the king (Filmer 1991, pp. 55, 195)

All natural rights to be given up to the king

1. Some natural rights retained, e.g. right to selfdefence even against the king 2. No rights retained by the people from Parliament (Herle, in Dow 1995, p. 18)

1. Some natural 1. Must give rights are up as many inalienable: natural (a) Selfrights as defence required for (b) To be protection. treated But equally under 2. Some rights the law to be (c) To change retained, e.g. the form of self-defence, government if so that it fails to allegiance protect the can be people switched to (d) To choose new governreligion ment ‘Our General and Original rights are not totally swallowed up’ (Ascham 1649, p. 123)

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1. Some natural rights to be retained, some inalienable 2. (a) Self-defence and selfpreservation (even against the sovereign) are inalienable (b) Not to incriminate oneself (c) Not to execute a dangerous/dishonourable office or fight in a war unless required for the defence of the commonwealth (d) To appeal to the law and be treated with equity (e) To any act not prohibited by law (Lev. Chapter 21)

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thought himselfe to be for his Philosophy;) others to Serve, (meaning those that had strong bodies, but were not philosophers as he;) as if Master and Servant were not introduced by consent of men, but by difference of Wit: which is not only against reason; but also against experience. For there are very few so foolish, that had not rather governe themselves, than be governed by others. (Leviathan, p. 211) In the Elements of Law after a similar passage criticising Aristotle, Hobbes says that as long as we consider some men more worthy by nature than others to rule, ‘[w]hich foundation hath not only weakened the whole frame of his politics but hath also given men colour and pretences, whereby to disturb and hinder the peace of one another’ (Hobbes, 1994b, p. 93), we will not be able to live in peace. He concludes that ‘we are to suppose, that for peace sake, nature hath ordained this law, That every man acknowledge other for his equal. And the breach of this law, is that we call PRIDE’ (ibid.). As Sanderson says: ‘The equality of men is … a vital assumption of the Hobbesian theory of politics’ (Sanderson, 1989, p. 88). Whether Hobbes favoured the introduction of measures such as extending the franchise, as the Levellers and Diggers did, in order to bring about a greater political equality in seventeenth-century England, is another question and will not be addressed here. What does seem clear is that in contrast to most royalists, Hobbes is committed to the notion that all persons (because he also argues for equality between men and women [Hobbes, pp. 253–254]) should be treated as equals. This commitment to egalitarianism clearly rules out acceptance of the arguments of divine right theorists such as Filmer and even those of moderates such as Clarendon on the existence of a natural hierarchy among men. Hobbes’s belief that the suitability of one individual or group to rule over others is a man-made fiction rather than a divinely ordained truth, puts him outside conventional royalist thinking. It also has repercussions for his analysis of sovereignty. A sovereign who rules by right, ordained by God, as part of a natural process of authority, passed down from generation to generation, has no need of extra justification and his right to rule is beyond question. Presumably only God could take away the right. Hobbes’s stipulation,

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therefore, that a sovereign’s right to rule lasts only as long as he is able to protect his subjects must have had a false ring for anyone who believed that the king’s right to rule comes from God and that, once ordained, he is its only rightful bearer. Perhaps the most interesting of the comparisons on the table, and the one most relevant for the thesis of this book, is that on natural rights. Both the Filmerian royalist and the more moderate royalist say quite clearly that all natural rights, including the rights to selfdefence and self-preservation, are alienable and all are given up to the king. This is also what Grotius says. The parliamentarians, on the other hand, say that some rights must be retained by individuals and both the moderates and the radicals agree that the right to selfdefence, even against the king, must be retained. The radicals go further, saying that several rights must be retained including a right to rebellion and a right to be treated equally under the law. Some de facto theorists such as Ascham also suggest that some rights should be retained. What Hobbes says about rights, when compared to these groups of thinkers, is much closer to the parliamentarians than to the royalists. Hobbes says that some natural rights can be retained and not given up to the sovereign, and of these some must be retained. The rights to self-defence and self-preservation are inalienable, they cannot be given up to the sovereign. This point distinguishes him from the royalists who are in agreement that all rights must be given up to the sovereign.10 This is a point of close similarity in both language and substance between Hobbes and the parliamentary writers. Even some of the more radical proposals of the Levellers and Diggers, such as the argument that there is a right not to take up arms, have their echoes in Hobbes. In Chapter 21 of Leviathan Hobbes says that we have a right not to fight unless the ‘Defence of the Common-wealth, requireth at once the help of all that are able to bear Arms’ (Leviathan, p. 270). There has been much ink spilled by Hobbes scholars in explaining how to square what he says about retaining the rights to self-defence and self-preservation with his apparent endorsement of absolutism. I will not contribute to that discussion here but just wish to draw attention to some of what Hobbes says on natural rights in the context of what his contemporaries were saying and using in their defence of the royalist and parliamentary causes.

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Conclusion The examination of some of Hobbes’s pronouncements on contested political questions of the day achieves two things. First, it throws into some disarray the received wisdom of Hobbes as a straightforward royalist in the mould of Filmer, Clarendon or Bramhall. Second, it provides leverage for the task of prising apart the three tightly interwoven assumptions of royalism, absolutism and the lack of substantive rights for individuals. The blanket royalism that is assumed on Hobbes’s part and its associated premises of absolutism and a lack of substantive rights for subjects are not, in my view, borne out by the evidence. Where I would argue with a great deal of Hobbes scholarship is in its tendency to categorise the theory as conventionally royalist or royalist in a way so straightforward that no further explanation is required. Whatever else the theory is, it is not conventionally royalist even though it supports some radically royalist ideas. And what might be termed the anti-royalist principles of: (1) sovereignty originating in the people, (2) natural equality and (3) the inalienable rights of subjects to preserve and defend themselves are difficult if not impossible to reconcile with support for Charles I and his style of government. I have put Hobbes’s political writing on certain specific issues into the historical context of the writings of political thinkers and propagandists of the pre-Civil War and Civil War years. By directly comparing what Hobbes says on specific political subjects with what the royalists, the parliamentarians and the de facto theorists say, we are able to see what must have been obvious to his contemporaries, that although he worked for and associated with some of the leading royalists in the country and was generally seen as writing in defence of the royalist cause; his mature (post Civil War) political theory, set out in Leviathan, could also be interpreted as providing theoretical support for the Rump, Parliament, Cromwell, the Levellers and the de facto theorists. How many other royalist writers could lay claim to that spread of political interpretation? And given this divergence of ‘readings’ of his theory do we know how Hobbes himself might have reacted to it? This question can perhaps be partially answered by the following remark made

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(admittedly before the end of the Civil War) in a letter to Edmund Waller in 1645: My odd opinions are baited. But I am contented with it as believing I have still the better, when a new man is set upon me that knows not my paradoxes but is full of his own doctrines, there is something in the disputation not unpleasant. He thinks he has driven me upon an absurdity when t’is upon some other of my tenets and so from one to another till he wonder and exclaim and at last finds I am of the Antipodes to the schools. (Hobbes, in Malcolm ed., 1994, Vol. I, p. 124) The suggestion that Hobbes might have been influenced by some of the pro-parliamentary writers of this period is not new, although it is increasingly rare; it was made in Hobbes’s own time by people like Clarendon and Bramhall and was first made to me by B.H. Baumrin. The tendency among Hobbes scholars now is to downplay the strange mixing together of elements from the opposing political sides of the Civil War. This contributes to an oversimplification of the theory and of the assumptions made about Hobbes’s own political beliefs. If, let us say, Robert Filmer had committed himself to the principle of the natural equality of men and had then argued for divine right theory, would his admission of that principle be seen as the use of a parliamentarian principle in an argument for the divine right of kings? Or would it have been seen as a spoiler for that argument, which has a required assumption, namely that some people have a right to rule that is bestowed by God and others do not and which implies therefore that people are not born equal. Similarly, if Hobbes commits himself to the inalienability of the right to defend and preserve ourselves, can he argue for an absolutism so complete that it rules out all justified resistance on the part of the subjects? Or has he thereby weakened the argument for absolutism? And if he has weakened the argument for absolutism, are we justified in saying that he was a ‘political theorist committed to the cause of the king’ (Martinich, 1999, p. 121). What Hobbes says about sovereignty is complicated. It originates in the people but is undivided and above the law. To say the king is above

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the law sounds absolutist until one sees the logic of his position. If the sovereign makes the law then the sovereign can change the law and whoever can change the law is in effect not subject to it. The subject of sovereignty will not be addressed in any detail here, however. At least one contemporary royalist thought that some of the principles Hobbes commits himself to in Leviathan are inevitably destructive to the royalist cause. In Clarendon’s words there are ‘the most mischievous principles, and most destructive to the Peace both of Church and State, which are scattered throughout that book of Leviathan’ (Clarendon, 1676, p. 5). Central to what Clarendon saw as ‘mischievous principles’ are those concerning the rights of individuals. What Hobbes says about the rights of subjects will make up the subject matter of the remainder of this book.

Part II Hobbes’s Theory of Rights: The Textual Argument

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3 Liberties and Claims – Rights and Duties

Introduction What Hobbes says about the rights of subjects has been shown to have, at least on face value, similarities to the pronouncements of the parliamentarians and even the Levellers. He makes certain rights inalienable and so subjects retain those rights into the commonwealth. This sets him apart from the royalists who insist that all natural rights are given up to the king in exchange for his protection. But what significance do these observations have for an assessment of Hobbes’s theory of rights? There is a received view of Hobbes’s theory of rights that defines the individual rights he describes as being, without exception, ‘liberty rights’, that is, rights that are merely freedoms.1 Liberty rights are not correlated with any duties or obligations on the part of others nor do they provide a ground for such duties or obligations; they therefore fall outside the definition of rights that is most often used in modern political and moral discourse. In other words they are not claim rights.2 As a consequence of this, what Hobbes has to say on the subject of rights is often dismissed as of little or no interest to modern rights theory. Hobbes’s theory of rights, if we could even call it a theory of rights, has been largely perceived as having little to contribute, either historically, to theories of natural rights (where Locke’s political theory is still accepted as the most important starting point for modern theories of natural rights) or to contemporary discussions that seek to build theoretical foundations for rights without recourse to discredited theories of natural rights and natural law.3 65

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Indeed, discussions of what Hobbes has to say on the rights of individuals usually take the form of demonstrations that Hobbesian subjects have no rights or at least none that turn out to be worth having in terms of the implied duties of others or a limit on the obedience owed to the sovereign. An examination of the text, of Leviathan, reveals, however, that Hobbes does not just describe liberty rights for subjects. He also describes rights for individuals that are correlated with the duties of others, rights, in other words, that can be defined, in Hohfeldian language, as claim rights. This textual part of my argument (that Hobbes does have a substantive theory of rights) will be in two parts. First, I will show, using the Hohfeldian language of liberty rights and claim rights, that Hobbes starts by describing the liberty rights of the right of nature and then, when individuals conform to the second law of nature, he shows how some liberty rights are strengthened into claim rights by the correlated duties of others. I will examine the analysis of several exponents of the received view on Hobbesian rights to illustrate the ways in which my argument allows for a more straightforward, less strained reading of the text than theirs. Second, (in the next chapter) I will argue that the right to selfpreservation has been read too narrowly by commentators, and this has contributed to an underestimation of its significance as an inalienable right that is carried into the commonwealth. The right to self-preservation, while remaining a liberty right, according to a Hohfeldian analysis, does acquire some protection from the duties of the sovereign, although these duties are not directly correlated with the right and therefore fall outside the definition of a Hohfeldian claim right. The inadequacy of the Hohfeldian analysis will be picked up later in the argument when I explore that approach to Hobbesian rights in Chapter 6.

Definitions of rights In using the terms ‘claim right’ and ‘liberty right’ I am following the definitions given by Wesley Hohfeld when he distinguishes four uses of the word ‘right’ in the legal literature.4 Two of those uses are relevant here, namely, that of a ‘right’ or ‘claim’ and that of a privilege or liberty,

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… if X has a right against Y that he shall stay off the former’s land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place. If, as seems desirable, we should seek a synonym for the term “right” in this limited and proper meaning, perhaps the word “claim” would prove the best. (Hohfeld 1919, p. 38) … a privilege is the opposite of a duty, and the correlative of a “no-right.” In the example last put, whereas X has a right or claim that Y, the other man, should stay off the land, he himself has the privilege of entering on the land; or, in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off. (Ibid., p. 39) Hohfeld emphasises the separateness of these two kinds of rights: ‘In view of the considerations thus far emphasised, the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other seems evident; and more than that, it is equally clear that there should be a separate term to represent the latter relation’ (ibid.). And so, to clarify the distinction: 1. A claim right is a right that is correlated with the duties of another or others. These duties consist in either refraining from actions that would impede the right-holder in her exercise of the right or, sometimes, of performing actions that will give the rightholder the thing she has a right to or help her to have or do the thing she has a right to. So, if A has a claim right to X against B, then B has a correlative duty to A to refrain from interfering with A’s having or doing X, or sometimes, a duty to give X to A or to help A to have or do X. 2. A liberty right (or privilege) is a freedom from a duty to refrain from doing something and it is not correlated with any duties on the part of others. Two or more people may have liberty rights to the same thing or action and will be in unrestricted competition with one another to exercise their rights. A liberty right is the opposite of a duty. So, if A has a liberty right to X against B, then B has a correlative no-right (i.e. no claim right) that A not do X.

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A has no duty to refrain from doing X; and B has no duty to refrain from interfering with A’s doing X. A and B may therefore be in competition for X, each has a liberty right to achieve X, neither has a duty to refrain from achieving X and each has no right that the other not achieve X. Hobbes’s definitions of a liberty and a right are as follows: By LIBERTY, is understood, according to the proper signification of the word, the absence of externall Impediments: which Impediments, may oft take away part of a man’s power to do what hee would; but cannot hinder him from using the power left him, according as his judgement, and reason shall dictate to him. (Leviathan, p. 189, my emphasis) For though they that speak of this subject, use to confound Jus and Lex, Right and Law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do or to forbeare; Whereas Law, determineth, and bindeth to one of them: so that Law and Right, differ as much, as Obligation and Liberty; which in one and the same matter are inconsistent. (Ibid., my emphasis) These definitions are quite specific and it is helpful to try and stick with them rather than to go against the text where it is unequivocal, although it should be mentioned that Hobbes had changed his definition of liberty from the definition he gave in De Cive5 and there has been discussion of this and other ‘inconsistencies’ in his use of the term liberty by scholars.6 For my purposes here, however, I shall assume the later definition, as given in Leviathan and an interpretation of it that is similar to that given by Goldsmith as consisting not merely of a strictly physical liberty but also liberty or freedom from civil bonds (Goldsmith, 1989). This is borne out in Chapter 21 of Leviathan: ‘But as men, for the atteyning of peace, and conservation of themselves thereby, have made an Artificial Man, which we call a Common-wealth; so also have they made Artificiall Chains, called Civill Lawes’ (Leviathan, p. 263). So, to have liberty is to be (externally) unimpeded in the use of one’s power to act. And a right is therefore an unimpeded freedom to

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do or to not do something. A right, according to Hobbes then, is a species of liberty. We can see from the definitions above that any right will be a liberty, so all rights in the theory are unimpeded abilities to act, or to forbear from acting, of one kind or another.

Unprotected rights, the right of nature Hobbes takes as his starting point the right of nature, that is, the right to all things that every individual has in the state of nature. Before any form of political order, ‘every man has a Right to every thing; even to one anothers body’ (Leviathan, p. 190). This is an aggregate right; a right to every and any action or thing that I deem necessary to my preservation. Hobbes describes the state of nature in the following way: [A] condition of Warre of every one against every one; in which case every one is governed by his own Reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemyes. (Leviathan, pp. 189–190, my emphasis) In other words, any action that may help me preserve myself is justified in the state of nature and each individual is at liberty to perform whatever action she sees fit: The Right of Nature, which Writers commonly call Jus Naturale, is 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 to be the aptest means thereunto. (Leviathan, p. 189) Rights held under the right of nature, as defined by Hobbes, have been seen as conforming to Hohfeld’s definition of liberty rights. And, ostensibly, this is right. Each individual is free to act or not act and that freedom imposes no restrictions on others or on the individual right-holder, in the form of duties or obligations. This is taken by commentators to be the exemplar of a Hobbesian right and for

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some interpreters, it carries with it the assumption that for Hobbes this kind of right is a good thing to have. I would not want to argue with the view that rights held under the right of nature exemplify what a right is for Hobbes but I do want to question whether holding a right of this kind is, in Hobbes’s view, a good thing. However much the right to all things in the state of nature may seem like an advantage to the individual, Hobbes makes the point that this is an illusion. First, in the Elements of Law he warns us … that right of all men to all things, is in effect no better than if no man had right to any thing. For there is little use and benefit of the right a man hath, when another as strong, or stronger than himself, hath right to the same. (Elements of Law, 1994, p. 80) And in De Cive he says: But it was of no use to men to have a common right of this kind. For the effect of this right is almost the same as if there was no right at all. For although one could say of anything, this is mine, still he could not enjoy it because of his neighbour, who claimed the same thing to be his by equal right and with equal force. (De Cive, 1998, p. 29) And he reiterates the point in Leviathan, ‘as long as this naturall Right of every man to every thing endureth, there can be no security to any man, (how strong or wise soever he be,) of living out the time, which Nature ordinarily alloweth men to live’ (Leviathan, p. 190). It is clear that Hobbes wishes to say that rights are not always beneficial to the right-holders. If the right held is what we have been calling a liberty right, in the state of nature, then no one has any duty to stand out of the way of the right-holder, or to uphold the right or to protect the right-holder in her exercise of the right. And all other people have an equal right to everything, so that there is competition between people who are exercising their rights to the same things. In such a case, as Hobbes says, ‘there is little use and benefit’ of having the right. If there is no protection of the exercise of the right, then holding the right leaves the individual as helpless as she would be with no right at all. This is an important point.

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If Hobbes is saying that a simple freedom or liberty right (that is, a right not correlated with the duty of any others) is of little use to the right-holder, then we are left with the conclusion that Hobbes’s own view of the rights of individuals, at least while we are in the state of nature, is that they are of little use to the right-holder. To summarise the right of nature: it is an aggregate right that covers any possible action that someone, living in the state of nature, might see as conducive to her preservation. By Hobbes’s own definition it is a liberty to do or to forbear that is unlimited. It is, therefore, a complete freedom to act. And yet there is a contradictory element to the right of nature that Hobbes points out. Individuals in the state of nature will be unable to enjoy an unrestricted exercise of the right of nature because others who may be stronger have an equally unrestricted right to the same things and actions. In other words, individuals are in competition with one another when they attempt to exercise their right of nature. Competition is unrestricted with no rules that would place an obligation upon anyone to refrain from any action. Using an example from Hampton (1986, p. 51), if we think of the right of every individual to the apples on a tree, then anyone may make a run at the tree and may use any means to try to prevent others from getting there first. Suddenly, as I am tripped and pushed back and beaten by those faster than me, my right to the apples on the tree looks ineffectual. There is also a problem with the definition Hobbes has given us, of a right as an unimpeded freedom to do or to forbear which now seems contradictory if the purest case of a right (the right of nature) is actually a freedom to act that will be impeded on all sides. The contradiction, however, is only an apparent one; there is no real contradiction, because it is only those rights that are unprotected that Hobbes describes as not worth having. If a right is to be effective for the right-holder it must be protected in some way, so that the impediments to its exercise are reduced as much as possible. Only if the right is protected does Hobbes’s definition of a right as a liberty (that is, a freedom from external impediments) to do or to forbear make sense. I shall argue that, contrary to the interpretations of the commentators, Hobbes does provide, in certain cases, for the protection of rights. Those rights do fit the definitions he gives and they are not mere (Hohfeldian) liberty rights, they are protected rights.

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Protected rights/claim rights A claim right is a right that is correlated with the duty of another or others. So far Hobbes has described only liberty rights, that is, rights held in the state of nature that are unimpeded freedoms to do or forbear. But he has also pointed out their weakness, which is that they are unprotected and therefore the right-holder is vulnerable to the interference of others who are equally free and unrestricted. How might these rights be strengthened? Leaving aside for the moment questions of the enforcement of duties, if my right to the apples on the tree was correlated with the duty of all others to refrain from acts that would interfere with my exercise of my right, then my passage to the tree and the apples would be clear and my freedom to pick the apples would be unimpeded. (Or at least it would be unimpeded by any deliberate act directed at preventing my exercise of my right. It is always possible that someone crossing my path for another reason will accidentally block my way to the tree or someone climbing it for a better view will block my access, or a sudden earthquake will make me fall over; but my right to the apples is at least cleared of the threat of sabotage.) Now we have a right that fits much better with Hobbes’s own definition of a right as a liberty (absence of external impediments) to do or to forbear. It also seems reasonable to suppose that his use of the phrase ‘external impediments’ refers to the impediments caused by other people’s deliberate actions (as well as a lack of ‘civil impediments’). When he points out the inefficacy of the right of nature in the Elements of Law, De Cive and Leviathan (as quoted above), it is in terms of the danger of other individuals’ use of their unlimited right. He does not mention other kinds of external impediments, such as the accidental interference of others, or natural physical impediments. Hobbes describes how individuals will choose to give up the right to all things (the right of nature) and thereby to put themselves under an obligation to refrain from interfering with the exercise of some of the rights of others. This process transforms some of the simple liberty rights held under the right of nature into rights that are correlated with the duties of others not to interfere with the exercise of those rights. Rights, in other words, that could be called claim rights. The result of this transformation will be that some of the liberty rights described above as being unprotected rights will become protected rights.

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The second law of nature, the introduction of claim rights? Hobbes describes the way out of the state of constant and unending civil war, that is, the state of nature, as being provided by a set of rational precepts or rules that set out what is necessary in order for individuals to best preserve their lives. These ‘convenient Articles of Peace, upon which men may be drawn to agreement’ (Leviathan, p. 188) are the laws of nature, the second of which explains how the right of nature, having failed to provide for the security of individuals, must be exchanged for a system of reciprocal transferring and renouncing of rights. Hobbes states the second law of nature as the law: That a man be willing, when others are so too, as farre-forth, as for Peace, and defence of himselfe he shall think it necessary, 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 himselfe. For as long as every man holdeth this Right, of doing anything he liketh; so long are all men in the condition of Warre. (Leviathan, p. 190) The right of nature is so destructive of security that it must be given up, or at least some of the rights held must be given up and Hobbes defines what it is to lay down a right in the following way: ‘To lay downe a man’s Right to any thing, is to devest himselfe of the Liberty, of hindring another of the benefit of his own Right to the same’ (ibid.). In other words, if I lay down my right to the apples on the tree, then, I am no longer free to interfere with another person’s exercise of their right to the apples on the tree. Once I have laid down the right (assuming whatever conditions are necessary for me to be able to do that), I will refrain from interfering with the right-holder’s exercise of her right. Hobbes states that this is not to give a new right to the person to whom the right is transferred, because in the state of nature everyone already has every possible right (the right to all things). For he that renounceth, or passeth away his Right, giveth not to any other man a Right which he had not before; because there is nothing to which every man had not Right by Nature: but only standeth out of his way, that he may enjoy his own originall

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Right, without hindrance from him; not without hindrance from another. So that the effect which redoundeth to one man, by another mans defect of Right, is but so much diminution of impediments to the use of his own Right originall. (Leviathan, pp. 190–191) So, on Hobbes’s analysis, the laying down of a right does not give the right-holder a new right but it does change the right or at least change the situation with regard to its exercise. This passage also supports the argument that when Hobbes says that liberty is the absence of external impediments he seems to be thinking of impediments caused by the voluntary actions of others. There are two ways a right may be ‘layd aside’, according to Hobbes, either by renouncing it or by transferring it to another. ‘By Simply RENOUNCING; when he cares not to whom the benefit thereof redoundeth. By TRANSFERRING; when he intendeth the benefit thereof to some certain person, or persons’ (Leviathan, p. 191). What does Hobbes mean by ‘benefit’ here? Clearly, he intends to show that it is to the benefit of the right-holder to whom the right has been transferred or who is left with the right another has renounced, to be the recipient of the effects of this new lack of liberty (on the part of the original right-holder), which will lessen the impediments to the exercise of his right. The person who is in receipt of the transferred right is now better able to enjoy his exercise of his right. ‘He that transferreth any Right, transferreth the Means of enjoying it, as farre as lyeth in his power’ (Leviathan, p. 197). It now seems clear that something has changed for the right-holder. He has received a benefit from the transference of the right of another and is now actually better able to enjoy the exercise of his right. I am not suggesting that he has a new right, a right he did not hold before, but that he has a changed right; some impediments to his enjoyment of his original right have been removed. Andrew Cohen makes a similar point: ‘Since people have such complete liberty, they can gain no new rights from some supposed transfer of right. Still, one person can give another something new. He can remove one obstacle in the other’s way when she exercises her native rights’ (Cohen, 1998, p. 34). Cohen stresses, however, that this does not amount to a new right: Let us suppose Charles wishes to transfer to Jane his liberty right to some coconut. In the natural condition, Charles, Jane and

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everybody else have rights to the coconut. This means that Jane can get no new rights from Charles. What she can get from him, however, is his agreement to stand out of her way. He can will no longer to hinder her use of the coconut. In this way, Charles obligates himself to Jane simply by willing not to impede her in the future. (Ibid., p. 35) My interpretation differs from Cohen’s on two points. First, the right that Jane now has, linked to Charles’s ‘agreement to stand out of her way’, is a different kind of right to the bare liberty she had before. Second, according to Hobbes, Charles must do more than will not to impede Jane in the future. To transfer the right he must signify the transfer. (I will discuss this in more detail in the next section.) So what does Hobbes say about the nature of the change in the position of the person who has renounced or transferred his right? He clearly states that an individual places himself under an obligation when he either transfers or renounces a right. And 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 that he Ought, and it is his DUTY, not to make voyd that voluntary act of his own: and that such hindrance is INJUSTICE, and INJURY. (Leviathan, p. 191) Anyone who transfers or renounces a right is therefore under an obligation and has a duty to refrain from any action that would hinder the recipient in her exercise of her right.

Summary of rights under the second law of nature There is a duty then, on the part of the person who has transferred or renounced their right that is related to the right of the recipient of that transferred or renounced right. It seems reasonable to say, therefore, that the duty of the person transferring or renouncing the right is correlated with the right of the recipient of the transferred or renounced right.

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There might be an objection that Hobbes does not intend there to be any ‘receipt’ of a right on the part of the person to whom the right is transferred. The following passage on the second law of nature, however, makes his intentions clear. The way by which a man either simply Renounceth, or Transferreth his Right, is a Declaration, or Signification, by some voluntary and sufficient signe, or signes, that he doth so Renounce, or Transferre; or hath so Renounced, or Transferred the same, to him that accepteth it. (Ibid.) So, the right that is voluntarily and deliberately transferred or renounced is also accepted by the person to whom it is transferred or renounced. Hobbes makes the same point in De Cive: ‘The transfer of a right requires the will of the recipient as well as of the transferor. If either is missing, the right does not pass’ (De Cive, 1998, p. 35). How does this fit with Hobbes’s declaration that there is no resulting new right for the recipient, who, after all, already has a right to all things under the right of nature? He does not receive a new right but he receives the right (the ‘it’ in ‘to him that accepteth it’ above, is the right which has been transferred), that is, the right-giver’s right, which right is now linked to the new duty of the previous right-holder to refrain from all actions that would interfere with the recipient’s exercise of the right. The recipient now has a right that is correlated with a duty on the part of another to refrain from actions that would interfere with his exercise of the right. This fits the definition of what we have been referring to as a claim right as defined by Hohfeld. And to objectors who might still maintain that Hobbes did not intend to introduce claim rights at all, there is a passage in a manuscript, written by Hobbes probably in the 1660s or 1670s, that contains the following passage: ‘Law and Right differ. Law is a command. But right is a Liberty or privilege from a Law to some certaine person though it oblige others.’7 Here Hobbes restates the distinction between law and right that he makes in Chapter 14 of Leviathan with the interesting addition of the phrase ‘though it oblige others’ referring to a right being the ground of obligations for others.

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Answer to an objection – Hobbes’s talk of liberty excludes claim rights An objection could be raised that would state the following: Hobbes is saying simply that an individual is giving up liberty under the second law of nature, and therefore he sees liberty as pertaining only to the pure, unprotected freedom of the right of nature. Indeed from the way Hobbes refers to the giving up of liberty and to the retaining of rights or liberty it is easy to think, as many commentators have thought, that what he means by a right is purely and simply a liberty or freedom and therefore that the rights he describes in the theory are liberty rights, that they are held under the right of nature and all but the rights to self-defence and self-preservation are given up upon entering a commonwealth. In other words, it seems that what Hobbes describes as happening under the second law of nature is merely the giving up of certain rights or liberties on the understanding that others will also give them up, and the result is a loss of liberty that is compensated for by a decrease in danger. On this interpretation, the result of the second law of nature is only a decrease in rights, rather than a decrease in bare liberties and an increase in protected or claim rights, as I have argued above. If we accept the standard interpretation of the second law of nature, however, how can we explain what happens to the recipient of the transferred or renounced right? We would have to say that they have not received a right that is correlated with a duty. Yet, as I pointed out above, Hobbes says: And 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 that he Ought, and it is his DUTY, not to make voyd that voluntary act of his own: and that such hindrance is INJUSTICE, and INJURY … (Leviathan, p. 191) and, Whensoever a man Transferreth his Right, or Renounceth it; it is either in consideration of some Right reciprocally transferred to himselfe; or for some other good he hopeth for thereby. (Leviathan, p. 192)

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On reading these passages it is hard to see how it could be denied that 1. Hobbes does say that a right is received as the result of a transfer. 2. The right which is received is correlated with the duty of the person who transferred it, to refrain from interfering with the recipient’s exercise of the transferred right. If 1 and 2 are correct, then even if Hobbes does sometimes speak as though a right is only a bare liberty or a liberty right; he has in fact described what I would now define as a protected right or, in Hohfeldian terms, a claim right.

Objections from commentators Commentators on Hobbes have argued against the notion that the rights resulting from the transfer and renouncing of rights under the second law of nature are anything other than liberty rights. I will defend the interpretation I have given above against objections from four examples of such arguments. David Gauthier, Gregory Kavka and Jean Hampton are in broad agreement that for Hobbes, the subjects’ rights are founded in the right of nature and, as in the right of nature, they consist in freedoms or liberty rights. Kavka differs slightly in distinguishing three concepts of rights employed by Hobbes, two of which could be defined as protected rights or claim rights, but the claim rights, according to Kavka, apply only to the sovereign, not to the subject, and the third which does apply to subjects is a ‘permission right’ which is a freedom or liberty right. All three are in agreement that there are no claim rights for individuals in the theory. 1. David Gauthier, rights as permissions Gauthier sees the rights that exist in a commonwealth as being the same liberties that Hobbes describes in the state of nature. The word liberty, however, is interpreted by Gauthier to mean ‘permission’. ‘The word “liberty” as scholars have recognized, is not defined and used by Hobbes in a clear and consistent manner … here it is sufficient to take the word in its obvious sense, and assume it conveys permission – what a man may do’ (Gauthier, 1969, p. 30). Whether

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the liberty or freedom that Hobbes had in mind can be regarded as a permission, particularly given that word’s implication of an authority to grant the permission, is questionable, especially in the context of the state of nature. But Gauthier uses the words ‘permission’ and ‘liberty’ interchangeably. And straight away he distinguishes a permission right from a claim right. ‘What is in accord with the right of nature, then, is what one may do, what it is all right for one to do. It is not, however, what one has a right to, a claim which must, or ought to, be recognized by others. The right of nature entails no correlative duties’ (ibid.). So, Gauthier is saying that the rights that exist in the state of nature are not claim rights. And as he thinks that all the rights in a commonwealth are those same rights of nature even after they have been retained, these too are not claim rights but are, like all rights of nature, liberty rights or permission rights. ‘… [T]hose rights which remain constitute the liberty of subjects’ (ibid., p. 140). Gauthier describes the right of nature as one of the four most important ‘moral concepts’ that are to be found in Hobbes’s theory, the other three being: the law of nature, obligation and justice. First, he gives what he calls ‘formal definitions’ of these concepts which, he says, are logically independent of Hobbes’s psychology and are practical, not merely prudential, concepts, and then he gives what he calls ‘material definitions’ of the same concepts, which he says are dependent on the psychological theory and allow us to outline Hobbes’s actual moral system, ‘his doctrine of what we ought, and ought not, to do’ (ibid., p. 29). In the past, Gauthier says, people have correctly argued that Hobbes’s conclusions have a prudential basis and then inferred incorrectly that the moral concepts used by Hobbes are therefore also prudential. In his discussion of the formal definition of the right of nature, Gauthier draws a distinction between Hobbes’s earlier writings, among which he includes De Cive, and later works such as Leviathan, saying that in the earlier works Hobbes connects the right of nature to reason. … [I]t is not against reason, that a man doth all he can to preserve his own body and limbs both from death and pain. And that which is not against reason, men call right, or jus, or blameless liberty of using our own natural power and ability. It is therefore a right

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of nature, that every man may preserve his own life and limbs, with all the power he hath. (EW4, p. 83, quoted in Gauthier, 1969, p. 32) And in De Cive the same connection is drawn, only this time with ‘right reason’. ‘But that which is not contrary to right reason, that all men account to be done justly, and with right. Neither by the word right is anything else signified, than that liberty which every man hath to make use of his natural faculties according to right reason’ (EW2, pp. 8–9, quoted in Gauthier, 1969, p. 32). Gauthier then draws the following equivalence: A has the natural right to do X ⫽ A doing X is initially in accordance with (right) reason. He then points out that Hobbes defines a right as the liberty to do, or to forbear, but this, says Gauthier, if put into the equivalence, leads to absurdities: A has the natural right to do X ⫽ A doing or not doing X is initially in accordance with (right) reason. The absurdity arises, according to Gauthier, because clearly it is not the case that for every action that accords with right reason, the omission of the action also accords with right reason. There are (at least) two possible explanations for this apparent absurdity, however. First, that Hobbes means that A has a right either to do X or to forbear from doing X, depending on which alternative accords with right reason, at the time. Or, second, that Gauthier is mistaken in thinking that in Leviathan Hobbes is saying that the right of nature accords with right reason. If, as seems to be the case, Hobbes says that in the state of nature man is ruled by the passions rather than by reason [referring, for example, to the state of nature in Chapter 13, Hobbes says, ‘this Inference, made from the Passions’ (Leviathan, p. 186)] and if it is only when we accept the laws of nature that we employ reason, then the quotation used by Gauthier is, in its context, consistent and does not give rise to an absurdity. ‘RIGHT, consisteth in liberty to do or to forbeare; whereas LAW, determineth, and bindeth to one of them’ (Leviathan, p. 189). Now we have right defined as a perfect freedom to do something, and law as a stipulation to do what reason dictates (for our self-preservation).

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Gauthier points out that in Leviathan Hobbes ‘leaves the concept of the right of nature entirely without prior explication’ (Gauthier, 1969, p. 34). He dismisses the possibility that Hobbes no longer accepted the arguments he had given in earlier works and concludes that ‘[n]othing in the argument present in Leviathan is incompatible with the supposition that the right of nature is based on reason, and so we are surely entitled to turn to the earlier works for our definition’ (ibid.). The fact that in Leviathan Hobbes ‘divorces discussion of right reason from the introduction of the right of nature, … (and) omits to add connecting links, which would make explicit the connection of right reason and the right of nature’ (Gauthier, 1969, p. 35) has led to some confusion according to Gauthier. Hobbes only starts to talk about human rationality in Leviathan when he addresses the problem of how men can escape from the state of nature. This means that it is in reference to the law of nature rather than the right of nature, that reason is introduced. A law of nature, Hobbes tells us in Leviathan, ‘is 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’ (Leviathan, p. 189). As Gauthier has stressed the connection of the right of nature to the exercise of reason, he says that Hobbes ought to link the right of nature to the law of nature in the following way: Given our formal definitions, it would seem that the laws of nature are precepts instructing us in the exercise of the right of nature … Hence acting on the laws of nature is acting rightly, exercising the right of nature … Furthermore, the laws of nature would not themselves impose limitations on the right of nature … they would serve the useful role of enabling us more effectively to act in accordance with reason, or to exercise the right of nature, but they would not affect that right in principle. (Gauthier, 1969, p. 39) Hobbes scholars have usually seen the right of nature and the law of nature as being sharply in contrast, with the right of nature as a state of total freedom and constant war and the law of nature providing the limits on freedom that lead to peace. Gauthier’s interpretation, that the laws of nature are a sort of extension of the right of nature and impose no limitations on it, is a radical departure from the

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accepted ‘reading’ and he admits that he is going beyond what Hobbes actually says when he points out that ‘unfortunately, what Hobbes says is rather different’ (ibid.). He follows this with the quotation from Leviathan, Chapter 14, which comes immediately after his definition of a law of nature quoted above: For though they that speak of this subject, use to confound Jus, and Lex, Right and Law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbeare; Whereas LAW, determineth, and bindeth to one of them: so that Law, and Right, differ as much, as Obligation and Liberty; which in one and the same matter are inconsistent. (Leviathan, p. 189) Clearly this presents a problem for Gauthier’s new interpretation of the law of nature as merely a guide to the proper exercise of the right of nature. He tries to get rid of the problem by dismissing this way of opposing right and law, and he does this by referring back to his criticism, mentioned above, of the definition of a right as the ‘liberty to do or to forbeare’. He concludes that as this ‘cannot be imported into Hobbes’s definition of right without creating absurdities’ and that it is this phrase which ‘enables Hobbes to oppose right and law in the way in which he does’, it is therefore reasonable to dismiss the opposition. If then we may ignore this way of explaining the difference between right and law, as involving an inconsistency with more basic features of Hobbes’s moral theory, we may accept the relationship between the laws of nature and the right of nature implied by our formal definitions. But, although we shall maintain that it is strictly accurate to say that the laws of nature do not themselves impose limitations on the right of nature, we shall see that this claim may easily be misunderstood, and as misunderstood it becomes clearly false. (Gauthier, 1969, pp. 39–40) It turns out that what Gauthier means here is that while the laws of nature do not strictly speaking impose any limitations on the right of nature, limitations are imposed but they are self-imposed. This is the

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main thrust of Gauthier’s argument about the concept of obligation in the theory that there are no natural obligations in the way that there are natural rights, the only obligations are those we impose upon ourselves when we lay down our natural right to some action or object. The point he wishes to make is that obligation does not exist prior to our actions in the form of a pre-existing obligation to obey, say, God’s law or the law of nature. Rather, obligation is something we create for ourselves. All obligations, then, are self-imposed. There are no natural obligations, co-ordinate with natural rights. There are no obligations outside the area of the right of nature; if one has an obligation not to do some action, then previously one had a natural right to do that action. (Ibid., p. 40) Gauthier then gives the following equivalence: A has an obligation not to do X ⫽ A has laid down the natural right to do X. And so, on Gauthier’s reading, the only way an obligation can arise in Hobbes’s theory is by the laying down of a right, and he raises a possible problem for Hobbes. He asks whether someone can lay down a right, if to do so would be contrary to right reason. Whether, for example, one has a right to do what would be either contrary or indifferent to their preservation. Gauthier’s answer is that it seems Hobbes would say one cannot have reason to do what one believes would destroy oneself and therefore one does not have the right to do such a thing. Gauthier points out that this might mean that the right of nature is initially limited, a position he has denied. He avoids this unwanted conclusion by arguing that outside the exercise of right reason there can be no consideration of a right. … [T]he question of right arises only within the framework of what is in principle possible. One neither has nor lacks the right to do what one cannot be motivated to do. And a normal man, in possession of his faculties, is necessarily motivated to preserve himself, and so cannot be motivated to destroy himself. As we have

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seen, the man who seeks to kill himself is, for Hobbes, ‘not compos mentis’. (Ibid., p. 49) But Hobbes says something else that Gauthier admits is troublesome for his reading. In De Cive, he reminds us, Hobbes says that if a man pretends his actions are for his preservation but knows this is not true then he may be offending against the laws of nature (ibid., p. 49). Again, this sounds like a limitation on the right of nature imposed by the laws of nature. But this too is compatible with Gauthier’s view that the laws of nature impose no limitations on the right of nature, for he tells us that ‘the question here is not whether the laws of nature are laws restricting our rights. Rather it is whether the laws of nature show the extent to which the right of nature is originally limited, by advising us that certain actions are wrong, contrary to reason’. And he continues ‘I am, however, inclined to think that in the bare state of nature, the right of nature is strictly unlimited – that whatever we do in that state is to be taken as considered conducive to preservation, and so done with right’ (ibid., p. 50). Acting in this bare state of nature, however, will inevitably lead to the war of each against each, and so, Gauthier says, the unlimited right of nature ‘proves contradictory in its use’. It leads to destruction when it exists for the purpose of preservation, and because of this it is necessary for us to give up some of our unlimited right (ibid., p. 52). Our natural rights are not taken away from us by the laws of nature, rather we realise what we must do to preserve ourselves and this involves giving up some of those rights. And so, he concludes, ‘initially, the right of nature is unlimited, but after one has accepted limitations on it, disregard of these limitations is without right, and indeed contrary to the laws of nature’ (ibid.). It is the second law of nature that provides what Gauthier calls the rationale for laying down some of our initially unlimited rights, and therefore for taking on certain obligations (ibid., p. 53). But he is careful to maintain that it is not the second law of nature that imposes limits on the right of nature. What the second law does state, according to Gauthier, is that ‘as a condition of peace every man must limit his own right of nature in certain respects, provided others do so. In this way, it does indirectly provide for limitations on the right of nature, by imposing on us the rational requirement that we

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directly limit our right’ (ibid., p. 54). It is often misunderstood, says Gauthier, and some interpreters have confused what the law itself does with what it requires us to do. This then leads to the view that the law imposes restrictions on the right of nature which in turn gives rise to the notion that it is the law that obliges us, taking obligation to mean ‘lack of right’. If this were the case one would have to accept that not all obligation is self-imposed, the opposite of what Gauthier is claiming. We might ask at this point, what position Gauthier has arrived at regarding the right of nature. He began by saying that Hobbes connects the right of nature to the use of reason, and stated that to say that A has a natural right to do X is to say that for A to do X is initially in accordance with right reason. He then disputed the distinction, drawn by Hobbes in Leviathan, between right and law saying that if upheld it leads the theory into absurdities. With the distinction out of the way, he suggested that the laws of nature, far from imposing limits on the right of nature, act as a guide to the right of nature that they are precepts which help us to ‘exercise the right of nature’. In other words, that obeying the laws of nature, rather than taking us away from the chaos of the state of nature, will actually help us to act as we ought to in the state of nature. Gauthier’s reading runs counter to the usual interpretation that it is the laws of nature that enable us to leave the state of nature (which is the state of war that inevitably results from the exercise of our right to all things) and enter civil society. If they are, instead, a guide to the proper exercise of the right of nature, then the proper exercise of the right of nature must constitute behaviour that will lead to peace. And yet, according to Hobbes, as long as we are exercising our right to all things (the right of nature) we will be in a state of war. ‘[F]or as long as every man holdeth this Right, of doing any thing he liketh; so long are all men in the condition of Warre’ (Leviathan, p. 190). The implication from Hobbes is surely that we must give up the right to all things if we are to achieve peace, and this fits with his description of the second law of nature where he says that men must be willing, so long as others are too, for the sake of peace, ‘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 himselfe’ (ibid.). Gauthier tries to fit this in with his interpretation by saying that the second law of nature describes the limits that we realise we must impose

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upon our own right of nature. And yet, if Gauthier is right and we are disposed by our rationality to impose limits on the right of nature and if the proper exercise of the right of nature involves accepting those limitations, then what is left of the original right of nature described by Hobbes as the right to all things that we have in the state of nature? Indeed, what has happened to the state of nature itself? If we are always bound to accept the rational limitations of the laws of nature then there is no state of nature that we need escape from and the point has gone from Hobbes’s ‘possibility to come out of it, consisting partly in the Passions, partly in his Reason’ (Leviathan, p. 188). This possibility consists, of course, in the laws of nature. It is hard to see how Gauthier’s interpretation can be squared with the text of Leviathan. He has focused on the idea that a prerequisite of the correct exercise of the right of nature is that it accords with reason. But he has himself pointed out that this connection of the right of nature to the use of reason has been taken from Hobbes’s earlier works and not from Leviathan. If one looks carefully at the quotations Gauthier has selected one can see that Hobbes is referring to the ‘blameless liberty’ we have when it comes to acting in the state of nature when there are no contracts and no sovereign to protect us. Acting in such a dangerous situation we are free to do anything that we think might preserve us and any such actions are not ‘contrary to reason’ because in this context it is rational to act with nothing but our own short-term individual preservation in mind. Gauthier admits, however, that in Leviathan Hobbes ‘divorces discussion of right reason from the introduction of the right of nature, … (and) omits to add connecting links, which would make explicit the connection of right reason and the right of nature’ (Gauthier, 1969, p. 35). Once Gauthier has linked the right of nature to the use of reason and coupled this with his dismissal of the distinction drawn by Hobbes between right and law, he is able to move towards a position where the differences between behaviour under the right of nature and behaviour under the law of nature are diminished to the point where he can say that the latter is no more than the correct expression of the former. But the cost of bringing the right of nature and the laws of nature so close together is that we lose the contrast Hobbes seems so anxious to emphasise, between the violent and

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anarchic consequences of acting on the right to all things, on the one hand, and the move towards peace that results from giving up that right to all things and obeying the laws of nature, on the other. The consequences of Gauthier’s argument about the right of nature for his view of rights in general, in Hobbes’s theory, are that all rights in the commonwealth are seen as the remaining liberties or permission rights that have been retained from the state of nature. These rights carry no correlative duties; ‘the liberty of subjects would seem to be coextensive with, or even equivalent to, the rights of subjects. Now these rights extend, presumably, to whatever rights are not given up in the covenant to authorize the sovereign’ (ibid., p. 130). The rights that are retained are the rights: (1) ‘not to kill or injure themselves’ and (2) ‘to defend themselves, under any circumstances’. These rights are ‘guaranteed by the inalienable core of the right of nature’ (ibid., p. 141). Also to be retained is the right (3) ‘not to undertake any dangerous task, such as killing another, or engaging in warfare, unless the survival of the commonwealth depends on it. That is, the inalienable right of nature must include the right to choose the course of action least dangerous to survival’ (ibid.). And finally, says Gauthier (4) ‘the subjects are not obliged to avoid what the sovereign has not forbidden by law’ (ibid., p. 142). This last provision, he concludes, comprises ‘the most considerable part of the liberty of the subject’ (ibid.). Once Gauthier is talking about the rights of the subjects in a commonwealth, he refers only to those rights that remain from the original right of nature. The rights, in other words, that form a part of the perfect liberty or freedom, that is the right to all things, enjoyed in the state of nature. Interestingly, he does not refer to those rights which come into being when one acts in accordance with the second law of nature, even though, according to his argument, the proper exercise of the right of nature means limiting oneself according to the laws of nature. To conclude then, on Gauthier’s reading of rights in Hobbes’s theory, all rights in the commonwealth are seen as liberty rights retained from the state of nature, carrying no correlative obligations or duties and offering no protection to the subjects. The retained right to self-preservation and its protection will be discussed in some detail in the next chapter.

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2. Kavka, the subject and the sovereign, liberty rights to claim rights Kavka distinguishes three concepts of rights employed by Hobbes: 1. A permission right. This is the weakest form of right and is a liberty right. ‘A party has a permission right to do something if and only if it is permissible for him to do it’ (Kavka 1986, p. 297). On Kavka’s reading, the rights that individuals have in the state of nature are permission rights. ‘[T]he most important permission rights are the right of nature and its corollaries’ (ibid., p. 298). According to Kavka, a permission right is a right that carries no correlative obligations but does ‘ascribe a genuine moral permission’ (ibid., p. 315). 2. A noninterference right. A noninterference right ‘consists in a permission right conjoined with an obligation on the part of others not to interfere with the agent’s performance of the act in question’ (ibid., p. 297). Here Kavka seems to be describing what we might call a claim right. The right carries correlative duties on the part of others, to refrain from any action that would hinder the performance by the right-holder of actions sanctioned by the right. The example he gives of a noninterference right is the sovereign’s right to punish lawbreakers. 3. An aid right. An aid right is the strongest form of right ‘which an agent possesses if and only if he has a noninterference right to do something and others are obligated to actively aid him in doing that thing’ (ibid.). This is what is sometimes called a positive right because it requires some positive act or actions by others, to fulfil the right, rather than a merely negative restraint from actions that would violate the right as in No. 2 above. Kavka uses the examples of the sovereign’s right to raise revenues from citizens and the sovereign’s right to conscript able-bodied persons into the armed forces ‘when the defense of the commonwealth requireth at once the help of all that are able to bear arms’ (ibid., p. 298, quoting Leviathan, Ch. 18) as examples of aid rights, because they require the ‘active cooperation of citizens’ (ibid.). As with the case of a noninterference right, this sort of right could be defined as a claim right because it implies correlative duties on the part of others. But, also as with the noninterference right, Kavka says that it applies only to the sovereign in a commonwealth and not to the subjects.

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What does Kavka mean by a moral ‘permission’? Clearly he intends to convey a permission right as a liberty right in a similar way to Gauthier. Kavka points out that there is a problem, however, because of Hobbes’s definition of liberty as the ‘absence of external impediments’ (Leviathan, p. 189), which would mean his right of nature is either tautological or false. There are often physical barriers to our use of our power to preserve ourselves, so, if taken literally, we do not always have the liberty (absence of external impediments) to preserve ourselves, so the right of nature is false. On the other hand, if we interpret the power to preserve ourselves as an internal ability to be able always to try to preserve ourselves, then the claim is empty and useless, and the definition of the right of nature (the liberty, i.e. absence of external impediments, to preserve ourselves) would be tautological. It must mean more, according to Kavka, than that there are no external impediments to our using our power to preserve ourselves. Kavka concludes that ‘in ascribing to us a right of nature, he [Hobbes] means to attribute to us only a certain kind of liberty’ that is, the absence of certain impediments, in this case not of physical impediments but rather of normative impediments such as ‘legal rules, moral principles, obligations, and so on. In saying that we have a right of nature, he is saying that as human beings we are under no natural normative restrictions on our pursuit of self-preservation’ (ibid., pp. 299–300). Now we have a better idea of what Kavka means when he characterises some Hobbesian rights as moral permissions. They are rights that consist in the liberty to act in order to preserve ourselves without moral impediment. The most important permission right, Kavka has told us, is the right of nature, and the right of nature is ‘the foundational right of Hobbes’s moral and political system’ (ibid., p. 299), which is, in turn, ‘a natural human right’ (ibid.). So, according to Kavka, this foundational right in Hobbes’s theory is a liberty right. But what of the other two rights Kavka has defined in the theory? Noninterference rights and aid rights are not mere liberty rights, for they involve the obligations of others. By Hohfeld’s definitions these are claim rights because they are the grounds of the obligations of others. Is Kavka arguing that Hobbes has claim rights in his theory? There are two things to say in answer to this question. First, these are rights that Kavka attributes to the sovereign not to the subjects of a commonwealth, so that even if the rights he is describing are

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claim rights they will not apply to individuals in the commonwealth. Second, when he attempts to carry over these sorts of rights into Hobbes’s own definitions and descriptions of rights, it does not work. Kavka argues that, for Hobbes, the concept of a right is central to his ‘entire scheme of moral concepts’ and that many of the other moral concepts he employs are defined in terms of rights. According to Kavka, he does this by using the notion of laying down a right for, he says, it is laying down a right that brings about an obligation and sometimes a covenant or contract. The kind of right Hobbes has in mind to be laid down is a permission right derived from the right of nature. On laying down a right we ‘give up the liberty of interfering with another’s exercise of what we earlier labelled a competitive right’ (ibid., p. 302). (A competitive right is a liberty right where two or more people have liberty rights to the same thing and may, therefore, interfere with the other’s right to that thing by exercising their own right.) Laying down a liberty right places one under an obligation not to interfere with the right-holder’s exercise of her right. This works well with Hobbes’s theory, Kavka points out, as long as we are concerned with permission rights. But he says, ‘[t]his reasonably neat picture falls apart when we consider one frequent consequence of the laying down of a permission right: creation of a right of noninterference’ (ibid., pp. 302–303). By Kavka’s definitions, when I renounce a permission right, I create a noninterference right for the right-holders with respect to myself. Or if I transfer a permission right I similarly create a noninterference right for the person or persons to whom I have transferred the right. Once these noninterference rights are held by various people it would seem, Kavka says, that according to the theory, these rights could themselves be transferred or renounced, creating ‘complex conjunctions of permissions and obligations of noninterference’ (ibid., p. 303). But, as Kavka himself remarks, ‘transfer and renunciation of such rights do not fit Hobbes’s definitions at all’ (ibid.). Kavka is right to point out the complexity and confusion that would result if one started applying the notion of the renouncing and transferring of rights, to noninterference rights as well as to permission rights. But perhaps I can go some way to explaining the apparent inadequacy of these notions by keeping in mind that when Hobbes uses the word ‘right’, at least in the context of the renouncing and transferring of rights, he is talking of the rights held under

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the right of nature. These rights, which are really just pure freedoms, or perhaps justified pure freedoms, can be given up, putting the previous right-holder under an obligation to the person or persons to whom the right is transferred. I could now ask, what is the nature of the new strengthened right, held by the person or persons to whom the original right has been transferred, the right which now seems to be linked to an obligation on the part of others? And my answer would be that it is a protected right or claim right. But Kavka, having defined this new right as a ‘noninterference right’ and having then tried to apply Hobbes’s treatment of liberty rights to the noninterference right, that is, having tried to apply the concepts of the transferring and renouncing of rights to a right that already entails an obligation is forced to say in the end that Hobbes’s ‘reasonably neat picture falls apart’ (ibid., p. 302), and that the ‘transfer and renunciation of such rights do not fit Hobbes’s definitions at all’ (ibid., p. 303). Kavka’s mistake is not in the conclusion he draws, that the transferring of rights that already entail obligations, therefore taking on new obligations, involves a sort of spiralling set of ever more complicated rights and obligations. His mistake is in thinking that Hobbes intended the transfer or renouncing of any rights other than the liberty rights held in the state of nature. The reason why we should transfer and renounce some of our rights, according to Hobbes, is that we want to move from a state of war to a state of peace and from a state of utterly unprotected rights (bare freedoms) to a state of protected rights. This only applies, of course, in the move from the state of nature into civil society, and therefore only applies to the rights we hold in the state of nature, that is, to liberty rights. 3. Jean Hampton, Hohfeldian liberties and the impossibility of claim rights in a subjectivist theory All the subjects’ rights in a commonwealth, says Hampton, ‘arise out of their fundamental “right of nature” to preserve themselves’ (Hampton, 1986, p. 52). According to Hampton, whenever Hobbes uses the word ‘right’ he is using it in the sense of Hohfeld’s concept of a right as a privilege or liberty, and she makes the point that a right, used in this sense, ‘is the opposite of a duty. If I have a liberty to use land in a certain way, I may do so or not, as I desire; in no way am I morally required to do so’ (ibid., p. 51). Hampton wants to stress

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that liberty rights are non-moral; she argues that such rights carry no ‘objectivist’ moral weight. They imply no duty or obligation either on the part of the holder of the right to perform the action she has a right to, or on the part of others to respect her right to that action. Liberty rights, in other words, are not claim rights. Hampton links her analysis of Hobbes’s liberty rights to her assessment of his moral theory. According to her reading of the theory there is no objectivist moral claim attached to his notion of a right because there is no objectivist moral theory in his writing. And, the liberty rights that Hobbes does describe are precisely those rights appropriate to a subjectivist moral theory. [Hobbes] makes a point of giving no objectivist moral reasons for attributing liberty-rights to human beings in the state of nature such that a claim-right would have to be linked to the exercise of them, and Hobbes accords a person liberty-rights only because of the subjectivist ethical position he espouses. (Ibid., p. 56) Hampton defines Hobbes’s ethical stance as subjectivist because he defines ‘good’ as ‘an object or state of affairs desired by any individual in a particular place and time’ (ibid., p. 53). And the notion of a right used by Hobbes fits this definition ‘because he defines a right or rational action as one that is instrumentally valuable to that individual in attaining the object of her desire’ (ibid.). If an action is a means to the end of the desired object then ‘it not only can be described with the adjectives “right” and “rational” but also can be characterized as an action that the individual has a “right” to take’ (ibid.). So, Hampton grounds Hobbes’s notion of a right in a theory of morality that gives no other justification for an action other than as a means to a desired end. If the desired end is self-preservation then any action towards that end is rational and justified and ‘done with right’. Fitting in with this subjectivism, a liberty right to an action or object exists ‘when reason determines that this object or action is necessary to accomplish his desired ends’. Using ‘right’ as a noun now, the word ‘indicates that the action is allowed by prudential rationality’ (ibid.). Indeed, if Hobbes were to say that X had no right to Y it ‘could only mean that the person’s action was not an effective means to her desired end’ (ibid., p. 54).

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Hampton does pull back a little from this interpretation by saying that what she has described is the notion of rights that Hobbes ought to hold ‘if he is a subjectivist’ and she then asks the question, ‘[b]ut does he actually hold it?’ (ibid., p. 53). Her answer to this question is that while there are passages in De Cive and Leviathan which seem to describe exactly this notion of a right,8 there are other passages in Leviathan where he seems to introduce what could be defined as a ‘claim right’, i.e. a right linked to an obligation on the part of others. This presents a problem of interpretation for Hampton because she has already stressed that given his ethical subjectivism ‘Hobbes cannot link the notion of obligation with any objective moral claim-rights individuals have’ (ibid., p. 55, my emphasis). The passage in Leviathan to which Hampton is referring is the following description of the second law of nature in Chapter 14: Right is layd aside, either by simply Renouncing it; or by transferring it to another. By Simply RENOUNCING; when he cares not to whom the benefit thereof redoundeth. By TRANSFERRING; when he intendeth the benefit thereof to some certain person, or persons. And 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 that he Ought and it is his DUTY, not to make voyd that voluntary act of his own: and that such hindrance is INJUSTICE and INJURY, as being Sine Jure; the right being before renounced, or transferred. (Leviathan, p. 191) Hampton admits that in this passage it sounds as though Hobbes is saying that once we have renounced our liberty right, we then have a duty to others not to try to exercise the right we have renounced and that this duty or obligation is correlated with a claim right that the person(s) who is the recipient of the right now holds against us. Noting that this and other similar passages in Leviathan have been used by Warrender to support his view that Hobbes holds a deontological moral theory, Hampton goes on to argue that ‘there is a subjectivist way to interpret the passage on obligation and duty quoted … from chapter 14’ (Hampton, 1986, p. 56).

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The textual evidence she uses to support her argument is from Hobbes’s discussion of the fool in Chapter 15 of Leviathan. When Hobbes gives his answer to the fool’s question as to why it would not be rational to break our contractual promises, when to do so might be in our interests, he replies that it is always in our (long-term) interest to keep our promises because if we do not we will be cast out of civil society back into a state of nature. We cannot expect the protection of those with whom we covenant if we are not to be trusted to keep our side of the agreement. Hampton says, of this reply, ‘his explanation does not invoke any normative obligation that we have incurred by promising to transfer our right. Instead he invokes selfinterest …’ (ibid., p. 55). And she concludes that while Hobbes may have apparently defined what it means to be obliged or duty-bound to do something in Chapter 14, by linking it to a person’s surrender of a right, what he shows in Chapter 15 is that the reason one should do one’s duty is because it is prudent to do so. In other words, there is no obligation or duty to not exercise the renounced right unless the non-exercise of that right is prudent and rational. Once it ceases to be in one’s best interests to ‘do one’s duty’, Hampton says, Hobbes tells us that we can and indeed ought to renege on our contracts, … all of chapter 21 of Leviathan is devoted to explaining when it is right (i.e., prudent) for subjects in a commonwealth to renege on their contract creating the sovereign. And in that chapter he repeats … what he had insisted on previously in chapter 14, namely, that ‘A covenant not to defend myself from force, is always voyd.’ So, for Hobbes, self-interest explains not only why we should do what we ought but also when our obligations arising from the surrender of right in a contract cease. (Ibid., p. 56) Hampton goes too far when she argues that Hobbes tells us to renege on our contracts. After all, it is the third law of nature which, Hobbes says, is the ‘Fountain and Originall of JUSTICE’ and which defines injustice as ‘the not Performance of Covenant ’ (Leviathan, p. 202). And, as she reiterates, it is when a contract is void that we are no longer obliged to keep it (and it is void if it involves contracting not to defend myself). It is one thing, however, to say that I cannot contract not to defend myself, or to put it another way, that a contract that

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did so would be void; it is quite another to say that Hobbes is telling us to renege on valid contracts. In Chapter 21, where, according to Hampton, Hobbes is explaining when it is right for subjects to renege on their contract creating the sovereign, Hobbes himself says that he will say ‘what are the things, which though commanded by the sovereign, he may neverthelesse, without Injustice, refuse to do’ (Leviathan, p. 268, my emphasis). Having defined injustice as the not performing of contracts, it is improbable that he is now saying that subjects can sometimes renege on or break (valid) contracts without injustice. Hampton summarises her argument that Hobbes’s subjectivism rules out any possibility that obligations could be inextricably tied to the surrender of a right in the following way, ‘[s]o, for Hobbes, self-interest explains not only why we should do what we ought but also when our obligations arising from the surrender of a right in a contract cease’ (Hampton, 1986, p. 56). Her argument seems to be that there is no real link between rights and obligations because self-interest will dictate whether or not an obligation is binding. And an obligation that can cease to bind in this way does not, on Hampton’s view, constitute a genuine moral obligation. But Hampton is wrong to suggest that the obligations that come into force after the renouncing and transferring of rights are so easily annulled. Hobbes is not saying that self-interest will always, as it were, trump an obligation. Indeed his reply to the fool makes precisely this point. When self-interest tells us to break an agreement we should remember that there is a deeper reason for keeping our agreements than for breaking them. The whole project of entering civil society and living in peace is dependent upon our ability to keep our agreements. And the laws that set out our obligations cannot be ignored or annulled whenever it seems to be in our interests to act against them. If obligations ceased to bind people every time that self-interest suggested breaking a contract, the argument against the fool would not work. Self-interest could always be used to justify breaking a contract. But Hobbes insists that the fool is wrong to think that ‘there is no such thing as Justice’ and that as ‘every mans conservation and contentment, being committed to his own care, there could be no reason, why every man might not do what he thought conduced thereunto: and therefore also to make; keep, or not keep Covenants, was not against Reason, when

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it conduced to ones benefit’ (Leviathan, p. 203). Hobbes rails against this misinterpretation of what he is trying to argue: ‘This specious reasoning is neverthelesse false … Justice, that is to say, Keeping of Covenants, is a Rule of Reason, by which we are forbidden to do anything destructive of our life; and consequently a Law of Nature’ (Leviathan, pp. 204–205). The laws of nature are not subject to the whims of individuals’ interests, on the contrary ‘[t]he Lawes of Nature are immutable and Eternall; For Injustice, Ingratitude, Arrogance, Pride, Iniquity, Acception of persons, and the rest, can never be made lawfull. For it can never be that Warre shall preserve life and Peace destroy it’ (ibid., p. 215). There are of course notorious difficulties with Hobbes’s moral theory, not least the fact that it is interpreted by some, like Hampton, as subjectivist and egoistic and by others, like Warrender, as deontological. I will not enter that debate here. All I want to argue is that the rights Hobbes describes, that result from the transfer and renouncing of liberty rights under the second law of nature, are, in Hohfeldian terms, claim rights. That is, they are rights that are correlated with other people’s duties or obligations. The person who has transferred or renounced a liberty right becomes obligated to the person who receives that right to not interfere with her exercise of her right. Hampton’s argument is that they are not really claim rights because 1. Such rights are not possible with the type of (subjectivist) moral theory Hobbes has. 2. The obligations he describes are not really binding (‘… contractual obligations exist only insofar as it is in our interest to perform them’ (Hampton, 1986, p. 56). My reply has been: 1. While there will always be those who disagree with Hobbes’s moral theory and who will argue that he cannot succeed in deriving moral concepts from his principle of self-preservation, nevertheless, Hobbes does discuss rights and under the second law of nature links them unequivocally to duties. Even if one would want to deny that these are truly moral duties, they do conform to the common sense notion of duty or obligation.

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2. The obligations that arise from the transfer of liberty rights are binding in that they arise from conforming to the second law of nature (which is a moral law), it is a requirement of justice that they are honoured and they cannot be annulled by particular selfinterest. 4. Warrender, Hobbesian rights within a deontological reading, still only liberty rights Hobbes uses the word ‘right’ in two different ways, according to Warrender. On the one hand, he uses it to mean ‘something to which one is morally entitled’ (Warrender, 1957, p. 18), which he says is equivalent to a description of other people’s duties and is the meaning usually given to the word in moral and political philosophy. Used in this way a right denotes the duties which other people have towards the right-holder. He claims that Hobbes sometimes uses the word right in this way, to mean entitlement (or claim right), but this is usually when he is discussing the rights of the sovereign. The only other instance in which there are rights that are entitlements are in civil society, when the individual ‘does collect some entitlements as against his fellow citizens, for the civil law does impose obligations upon them that secure him in some respects’ (ibid., p. 195). These are legal rights granted to him by the sovereign when he makes the law and are therefore not to be confused with those (natural) rights which the individual has prior to civil society. When Hobbes is discussing the rights of the subjects he uses the word in a different way, according to Warrender, to mean freedom from obligation. In this sense rights ‘are the antithesis of duties’ (ibid., p. 19). This form of a right specifies ‘something that the individual cannot be obliged to renounce’ (ibid.) and is intended as a definition of the rights described by Hobbes as existing in the state of nature. ‘Thus Hobbes’s “right to all things”, for example, does not imply that men are entitled to everything, but that they cannot be obliged to renounce anything’ (ibid., p. 20). So, ‘a right to x’ should be translated as ‘a freedom from obligation to renounce “x’’, whereby rights do not imply corresponding duties in other people’ (ibid., p. 50). When an individual lays down a right, Warrender argues, he ‘resigns a freedom’ but does not ‘transfer a right in the modern sense of making over to others an entitlement to some object or service to which he himself was entitled previously’ (ibid.). And although the

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person transferring the right becomes thereby impeded in his future actions against the person to whom the right is transferred, this affects only him, according to Warrender, all other people are still free to interfere with the right-holder’s ability to exercise his own right. So, his argument is that because there is no general standing out of the way of the right-holder’s right to exercise her right, there is no resulting claim right for the transferee. Warrender also claims that the person to whom the right is transferred has only the same right that he had before. In other words, Warrender is arguing that the kind of transfer of rights described by Hobbes under the second law of nature does not create a new kind of right, a claim right; it does not in fact change the right in any way, … the individual who resigns or transfers a right, takes upon himself a duty which he did not have before, but the rights of other people remain the same, whether the transference of the right in question was to them or not. Thus if, for example, the individual transfers a right to person ‘p’, but not to person ‘q’, he will have a duty not to hinder ‘p’ in some respect and no duty to ‘q’ in this respect; but the rights of both ‘p’ and ‘q’ will remain the same as before. This assertion appears less paradoxical if Hobbes’s special use of the word, right, is emphasized. Thus, to resign a freedom from obligation (a right), does not as such increase other people’s freedoms from obligation (rights), although, as Hobbes adds, it does affect the convenience of their exercise. Similarly, to transfer a right to a particular person, does not increase his freedoms from obligation, but it does increase the facility with which he can exercise these freedoms. It is of rights in this sense that the second law of nature requires a resignation or a transference. (Ibid.) For the person ‘p’, Warrender is arguing, his right remains unchanged, even in relation to the individual ‘x’ who has transferred his right to ‘p’. Yet he admits that ‘x’ now has a duty towards ‘p’ in that he is obliged not to hinder ‘p’ in his (p’s) exercise of his right. So, p’s right in relation to x is now correlated with a duty of x’s. And this duty that x has, directly affects p’s ability to exercise his right, because it ensures that p’s ability to exercise his right will not be interfered with by ‘x’; p’s right is now correlated with a duty of x’s to respect p’s exercise of the right.

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Even if one sticks with Warrender’s definition of a right as a freedom from obligation, this freedom from obligation is now a protected freedom from obligation. In relation to x then, p’s right has changed in that it has lost its competitive aspect. If x has transferred his right to the apples on the tree to p, then p is no longer in a competitive situation with x in exercising his right to the apples, and this competitive aspect is one of the characteristics of a liberty right, as I have mentioned above. Warrender does point out that, although by transferring a right the individual restricts his own future actions against the person to whom the right is given yet ‘he does not impede the action of other men as against that person’ (ibid.). And he uses this to support his claim that the right-holder’s right has not changed, even in its exercise, because there are many other people who may still interfere with his exercise of it. It is important to remember, however, that what is under discussion is the second law of nature and according to the second law of nature we must all lay down some of our rights and indeed, each one of us is only obliged to do so when everyone else agrees to do the same, ‘if other men will not lay down their Right, as well as he; then there is no Reason for any one, to devest himselfe of his: For that were to expose himself to Prey, (which no man is bound to)’ (Leviathan, p. 190). So, the example Warrender has given, of one person x, transferring his right to p, does not represent the laying down of rights that Hobbes describes under the second law of nature. The second law of nature operates as a collective system of the transfer and renouncing of all the rights that we would not wish others to hold against us in civil society. All rights that allow the invasion of the person of another, or a threat to peace, or interference with the means to one’s preservation, would presumably be given up. Exactly which particular rights must be given up is to some extent a matter of speculation, as Hobbes himself does not specify exactly which rights would be transferred or renounced under the second law of nature. If we keep in mind the wording of the law, however, [t]hat a man be willing, when others are so too, as farrre-forth, as for Peace, and defence of himselfe he shall think it necessary, 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 himselfe, (Leviathan, p. 190, my emphasis)

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then we shall be able to say roughly what sorts of rights would have to be given up or transferred. (It should be noted that when Hobbes says that we should be contented with only so much liberty against other men, he must be referring to the liberty to interfere with others that is given up every time one transfers or renounces a right. This loss of liberty to interfere, on the one hand, is replaced with the increased liberty on the other, to exercise the rights that have been transferred to us.) Under the second law of nature therefore, everyone would lay down their right, say, to p’s body so that his (p’s) right to his own body would then be protected by the fact that everyone else now has a duty not to interfere with his right to his body. His right has changed from being a simple liberty right, to a freedom or liberty right that is protected by the duties of others not to interfere with its exercise. In Hohfeldian terms it is now closer to the definition of a claim right than a liberty right. Warrender’s argument, that the right held by a subject after another subject has transferred a right to him (as described by Hobbes under the second law of nature) is no different to the right originally held (i.e. the liberty right, held in the state of nature), can be defeated. As I have shown above, the recipient of a transferred right has a protected right, a right that is now correlated with a duty of the person who held the original right before transferring it. That person now has a duty not to interfere with the right-holder’s exercise of her right. The right-holder, therefore, has had something added to her original right. It is not, as Warrender argues, completely unchanged by this process. And, given that the second law of nature specifies that we must all give up or transfer rights that are invasive or dangerous to others or to the peace, the recipient of the transferred right will actually receive the transferred right (say, to her body), from all other individuals as well. The right (to her body) that she ends up with then will be correlated with the duty of all others not to interfere with her exercise of it.

Hobbes’s theory of rights – What kind of theory? If I have been right in arguing that Hobbes introduces protected rights for individuals, once they conform to the second law of nature; what implications, if any, does this have for his theory of

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rights? First, I will say something briefly about the way the theory is analysed currently. Commentators on Hobbes’s moral theory over the last 60 years or so usually fall into one of two categories; those who interpret him as holding some form of egoism and subjectivism and those who argue that he holds a deontological moral theory. One might expect that those holding the latter view would see Hobbes as having a strong theory of rights but as I have shown in the discussion of Warrender above, this is not the case. I have not read any commentators, with the one illuminating exception of Leo Strauss,9 who argue that Hobbes has a strong theory of rights or that the rights he ascribes to individuals amount to anything more than liberty rights.10 As I have demonstrated above, however, in the sections on Gauthier, Kavka, Hampton and Warrender, it requires quite a strained reading of the text in order to argue that Hobbes does not introduce something akin to claim rights under the second law of nature. If one gives a more straightforward reading of the text, as I think I have given above and if one includes the holding of (claim) rights against other individuals, how does this affect how we might see Hobbes’s contribution to rights theory?

Rights held against other individuals vs rights held against the state One reason for the tendency of Hobbes commentators to argue that there are no substantive rights for individuals in the theory is the assumption of some that to have a substantive political right is to have a claim right against the sovereign or the state. Warrender, for example, says, ‘[n]atural rights for the citizen, in the traditional sense of substantive rights against sovereign authority, cannot on Hobbes’s view be given any philosophical justification, and the claim to such rights argues only a complete misconception of the nature of sovereignty and law’ (Warrender, 1957, p. 253). The notion of the ‘traditional sense of substantive rights’ as represented in Lockean theories of natural rights, where the individual holds, as a consequence of natural law, rights that carry correlative duties on the part of the state, is the notion of individual rights that informs much modern discussion of Hobbes’s political and moral theory. When Hobbes’s pronouncements on rights are held up against

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the Lockean prototype they are seen to fall well short of his natural rights theory; indeed the very definition of a right given by Hobbes is seen to describe a system of rights that are ‘the antithesis of duties’ (ibid., p. 19) and imply no correlative duties on the part of others. The Hobbesian right of nature can therefore be characterised, and rightly so, as nothing more than a freedom to compete for the thing or action to which one has a so-called right. This understanding of a Hobbesian right, along with the assumption mentioned above, that substantive rights are rights held against the sovereign (who therefore has correlative duties towards the right-holder), has been one reason for the dismissal of Hobbes’s theory as containing no rights for the individual other than liberty rights.11 If, however, we can interpret a substantive right as a right that can be held against other individuals, rather than against the state, then we have, under the second law of nature, some substantive rights (or claim rights in Hohfeldian language) for individuals in Hobbes’s theory. Jeremy Waldron describes the Hohfeldian claim right in the following way: ‘Hohfeld’s claim-right is generally regarded as coming closest to capturing the concept of individual rights used in political morality. To say that P has a natural right to free speech, for example, is usually to say (maybe among other things) that people owe a duty to him not to interfere with the free expression of his opinions’ (Waldron in Waldron ed., 1984, p. 8, my emphasis). When individuals gain claim rights under the second law of nature they gain them against other individuals, not against the sovereign, although the sovereign is obliged to obey the law of nature (Leviathan, p. 265) and must make them part of the civil law and enforce them (ibid., p. 314). The sovereign himself is not party to the process of the transfer and renouncing of rights, however, and so does not take on duties towards subjects in the same way as individual subjects do to each other. The sovereign’s relationship to the subjects in terms of their rights is a complicated one. I have restricted my arguments so far, to those concerning subjects and their rights under the second law of nature. It is enough for now to say that the sovereign is obliged to enforce the rights that individuals hold against each other, and the rights that result when individuals conform to the second law of nature can be defined as substantive political rights (or, in Hohfeldian terms as claim rights). I will now turn to the rights that are retained into the commonwealth and held even against the sovereign.

4 The Full Right to Self-Preservation and Sovereign Duties

Introduction Individuals in Hobbes’s theory start out with the broadest possible set of rights or freedoms: the right to anything that may help us to preserve ourselves that comprises the aggregate right of nature. Then we conform to the second law of nature and go through the process of transferring and laying down those rights that we would not want others to hold against us. Where does this leave the Hobbesian individual with regard to her rights? She now has a residual set of rights. These remaining rights consist in those freedoms that have not been transferred or renounced. They are what remain of the right of nature which was of course the right to preserve ourselves that forms the starting point of the theory. The right to self-preservation is what drives Hobbes’s argument for government and it is never given up but is retained and carried into the commonwealth. Under the second law of nature only those rights or freedoms that were found to be counterproductive to our preservation have been given up. When we allow total freedom to any and every action that may be seen as conducive to our preservation including the freedom to invade one another’s bodies [‘every man has a Right to every thing; even to one anothers body’ (Leviathan, p. 190)], then we are in a constant and unending war of each against each. In order to live in peace together we must give up those freedoms that allow us to invade and endanger others. But our basic right to preserve ourselves is never given up. The reason that we enter civil society and institute a sovereign, is so that we may better preserve ourselves. And Hobbes is clear that the 103

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right to self-preservation cannot and must not be given up. It is inalienable and is therefore retained into the commonwealth. Commentators have usually seen this inalienable right to selfpreservation as consisting merely in the right to self-defence, the right to physically defend ourselves against attack. There are two commonly held beliefs about the retained subjects’ rights in Hobbes’s political theory. First, that the right to self-preservation amounts to no more than a narrow right to defend ourselves against attack and to strive to preserve our lives in the most literal sense. Second, that the right to self-preservation offers no protection for the Hobbesian subject against the (absolute) power of the sovereign. This second thesis is usually said to be the consequence of one or both of the following: first, the right to self-preservation, along with all other Hobbesian rights, is of no benefit to the right-holder because it is merely a freedom or liberty right and therefore not correlated with any duties on the part of others. Such rights, as has been discussed, are seen as rights in name only and offer no protection to the subject and no curb on the sovereign power. Second, the right to self-preservation is of no benefit to the Hobbesian subject because the sovereign is absolute and may do what he wishes to the subjects with impunity. The subjects, in other words, hold no rights against the sovereign.1 The Hohfeldian assumptions underlying this reasoning are: first, that a liberty right consists in a bare freedom only and offers no protection to its subject because it is never correlated with duties on the part of others to refrain from interference or to assist the right-holder and second, as above, that liberty rights are the only kind of rights held by Hobbesian subjects. I will argue against the two theses and for a different way of understanding the right to self-preservation in Hobbes’s theory, which has, in my view, been interpreted far too narrowly.2 I will look first at the scope of the right to self-preservation and second, at its relationship to the role and responsibilities of the sovereign. The right to selfpreservation, at least as it is presented in Leviathan, is much broader than is generally realised and encompasses far more than a basic right to self-defence. It also holds greater political significance than it has usually been accorded because, while not directly correlated with the duties of the sovereign, the sovereign does have certain

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responsibilities and duties as sovereign and these do protect the rights of the subjects, albeit in an indirect way. This view has had no obvious supporters among Hobbes scholars, the recent piece by Finkelstein (2001) on the right to self-defence being an exception, and even there the right is said to be a mere liberty right. A leaning towards elements of my view can be found in the works of Edwin Curley,3 Conal Condren4 and, perhaps most significantly, Jean Hampton.5 For Hampton, the possible implications of the self-defence right (part of the right to self-preservation), which is retained into the commonwealth, are so serious as to render ‘the entire Hobbesian justification for absolute sovereignty invalid’ (Hampton, 1986, p. 197). I shall say something about Hampton’s argument below, but first I shall present my own argument on the extensiveness of Hobbes’s right to self-preservation and on its implications regarding the requirements of the office of sovereign and the check on the sovereign’s power they provide. The right to self-preservation amounts to what I call the right to full preservation. And in asking what kind of right this is, I shall explore its relationship to the sovereign requirements to procure the safety of the people and to guarantee the peace. The right to full preservation becomes, after the institution of a sovereign, a protected right, not quite a claim right, in the Hohfeldian sense, because it is not directly correlated with the sovereign’s duties and yet it is protected by what the sovereign must do to fulfil his office as sovereign. As will become clear, the Hohfeldian terminology of ‘claim rights’ and ‘liberty rights’ can be misleading and I will say something about that but leave the detailed discussion of Hohfeld for later. The Hobbesian sovereign is famously outside the contract made between individuals in the state of nature when they agree to form a commonwealth, and commentators on Hobbes have often made the case that on entering civil society the rights of the individual subject are either given over to the sovereign in return for his protection or are rendered useless once the sovereign is in place.6 Hobbes makes it clear, however, that there are certain rights, pertaining to our selfpreservation, which cannot be given up. We enter society for the sake of our preservation and, as Hobbes says, we can never give up the

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right to defend and preserve ourselves. ‘[N]o man can transferre, or lay down his Right to save himself from Death, Wounds, and Imprisonment’ (Leviathan, p. 199).

The right to self-preservation Hobbes first discusses the right of the individual to preserve oneself, when he describes the state of nature. In this context, the right forms the basis of the aggregate right to ‘all things’ that is the right of nature. The RIGHT OF NATURE, which Writers commonly call Jus Naturale, is 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 to be the aptest means thereunto. (Leviathan, p. 189) This right to preserve ourselves exemplifies what a right is for Hobbes. It is a justified freedom or liberty to do or to forbear from whatever actions will help us preserve ourselves. He famously distinguishes between right and law, saying, ‘they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbeare; whereas LAW, determineth, and bindeth to one of them: so that Law, and Right, differ as much as Obligation and Liberty; which in one and the same matter are inconsistent’ (Leviathan, p. 189). This seems clear enough; where there is a liberty there is no obligation or duty; in other words, one is free to act or to forebear from acting and this freedom is normative; one is under no duty to not exercise the freedom. I shall assume a normative element attaches to a liberty,7 at least as is implied in the distinction he draws above between a law and a right – that a liberty is a lack of obligation to do otherwise as well as a physical freedom. The right to preserve ourselves is generally referred to as a liberty right, by commentators on Hobbes, following Hohfeld’s analysis of rights in the legal literature.8 This right to preserve ourselves, unlike many of the other rights that make up the aggregate right of nature, is, however, retained into the commonwealth. So, after

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transferring and giving up those invasive rights that militate against a state of peace,9 Hobbes insists that we hold onto our right to self-preservation, … there be some Rights, which no man can be understood by any words, or other signes, to have abandoned or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to ayme thereby, at any Good to himselfe … (Leviathan, p. 192) A Covenant not to defend my selfe from force, by force, is alwayes voyd. For (as I have shewed before) no man can transferre, or lay down his Right to save himself from Death, Wounds, and Imprisonment. (Leviathan, p. 199) I shall say more below about the nature of this right that has been carried into the commonwealth, but first I shall address the question of what is included under it. The right to self-preservation is a right to what exactly?

Content of the right The right to self-preservation has usually been defined narrowly as the right, literally, to preserve our lives. ‘[N]o one can give up those rights that are necessary for self-preservation: the right of resistance or the right of self-defence’ (Martinich, 1997, p. 48). ‘It is clear that [Hobbes] believed that our only natural right is the right barely to preserve ourselves, and to use whatever means we take to be necessary for that purpose’ (Tuck, 1989, p. 79). This narrow definition of the right to self-preservation fits well with the right as Hobbes describes it in the Elements of Law and in De Cive, ‘… it is not against reason that a man doth all he can to preserve his own body and limbs, both from death and pain … It is therefore a right of nature: that every man may preserve his own life and limbs, with all the power he hath’ (Elements of Law, p. 60); ‘… things are done by right of nature, and are held to be so done, if they necessarily contribute to the protection of life and limb’(De Cive, p. 28). In Leviathan, however, Hobbes broadens the right to self-preservation. If one looks at the

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next part of the passage quoted above, from Chapter 14 of Leviathan, where Hobbes describes why individuals must give up the invasive rights held under the right of nature, there is a hint at the much more extensive right to preservation that Hobbes now has in mind. … And lastly the motive, and end for which this renouncing, and transferring of Right is introduced, is nothing else but the security of a mans person, in his life, and in the means of so preserving life, as not to be weary of it. And therefore if a man by words, or other signes, seem to despoyle himselfe of the End, for which those signes were intended; he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted. (Leviathan, p. 192, my emphasis) Here Hobbes draws our attention to the scope of the right he is describing. Now we are not only concerned with preserving our physical lives but also with ‘the means of so preserving life, as not to be weary of it’. We must preserve what we might now call our quality of life as well as our mere physical survival. And in the context of arguing that the right to self-preservation is not to be given up he says the following: As it is necessary for all men that seek peace, to lay down certaine Rights of Nature; that is to say, not to have libertie to do all they list: so it is necessarie for mans life, to retaine some; as right to governe their own bodies; enjoy aire, water, motion, waies to go from place to place; and all things else without which a man cannot live, or not live well. (Leviathan, pp. 211–212) Here we start to see the extent of the self-preservation right that Hobbes is now arguing for. Not only do we have a right to what is necessary for survival but also to ‘all things else without which a man cannot live, or not live well’ and this would include, for example, bodily integrity and freedom of movement. Later, in Chapter 30, when Hobbes discusses the office of sovereignty he refers to the safety of the people and says: ‘But by Safety here, is not meant a bare Preservation but also all other Contentments of life, which every man

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by lawfull Industry, without danger, or hurt to the Commonwealth, shall acquire to himselfe’ (Leviathan, p. 376). We have a right, in other words, to what is necessary not just to live but to live a good life, to live what Hobbes would call a commodious life. And this right, he says, must not, indeed cannot, be given up, but must be retained into the commonwealth. Hobbes’s commitment to this extended right to self-preservation will become clearer when I look at the move into a commonwealth and what he says at that point, regarding the right. For now, it is enough to say that, according to his argument in Leviathan, there is an inalienable right, not only to preserve our lives, that is, to avoid death, but also to what is needed for us to live a life that will be worth living. So, we must retain from the right of nature (that gave us a right to any action or thing we thought we needed for our preservation), the right to those things or actions that will enable us to live a commodious life. Indeed, if we should seem to agree to anything that would ‘despoyle’ ourselves of the end towards which we aim in transferring and renouncing some of our rights, in accordance with the second law of nature (as above, from Chapter 14 of Leviathan), then we are not to be understood as though we meant it.

Full preservation The right to self-preservation, in Leviathan, which Hobbes says cannot be alienated but must be retained by each individual into the commonwealth, amounts to a right to what I am calling ‘full preservation’. This right to what Hobbes would call a commodious life, amounts to the right to a life in which individuals are able to enjoy at least the minimum freedoms that are required for an active and full life. It includes the right not only to preserve our lives but also to the conditions that are necessary for basic human well-being or flourishing. For Hobbes it is after all a commodious life that we aim at in forming ourselves into a commonwealth and this is often overlooked by commentators who see him as assuming that we are solely concerned with our physical preservation. ‘The finall Cause, end, or Designe of men, … in the introduction of that restraint upon themselves, … is the foresight of their own preservation, and of a more contented life thereby’ (Leviathan, p. 223).

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The rights that Hobbes mentions, under the aggregate right to preservation, include: the right to self-defence, the right to resistance, the right to whatever is required to preserve ourselves as long as it does not endanger others, the right to basic minimal freedoms such as the right to govern our own bodies, the right to enjoy ‘air, water’, the right to freedom of movement and the right to engage in ‘lawful industry’ in order to furnish ourselves with the normal ‘contentments of life’. To these we could also, arguably, add those liberties that Hobbes says will not be outlawed by the sovereign, ‘such as is the Liberty to buy, and sell, and otherwise contract with one another; to choose their own aboad, their own diet, their own trade of life, and institute their children as they themselves think fit; & the like’ (Leviathan, p. 264). And in Chapter 30 when discussing the office of sovereign and the end of sovereignty as ‘the procuration of the safety of the people’ (Leviathan, p. 376), he also says, ‘[t]he safety of the people requireth further, … that Justice be equally administered to all degrees of People; that is, that as well as the rich, and mighty, as poor and obscure persons, may be righted of the injuries done them’ (Leviathan, p. 385), and so seems to include a right to equity within the scope of the right to full preservation. If I am right about the aggregate right to full preservation, it is a far cry from the ‘bare preservation’ right that is assumed by most commentators. The fact that it is inalienable and carried into the commonwealth by each individual means that it also has some implications for the theory as a whole and particularly for the (supposed) absolute power and authority of the sovereign. What sort of right? The right to self-preservation starts out, like all rights in Hobbes’s theory, as a right of nature; a simple liberty; a justified freedom to any action that I deem necessary to preserve myself while in a state of nature, which is of course, a state of war. As I have shown above, the right to self-preservation (which, I have argued, amounts to the right to full preservation) is not given up or transferred to others in return for duties that provide protection, as invasive rights are, under the second law of nature. The right to self-preservation is retained into the commonwealth. What is its status after the institution of a sovereign and the erection of a commonwealth? Does it remain a simple freedom, which merely leaves individuals free to compete against one another for survival and the quest for a commodious life?

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The right to self-preservation becomes a protected right The reconstruction of Hobbes’s argument that I am suggesting, explains how individuals become protected by instituting a sovereign, in terms of the right to full preservation. This aggregate right becomes protected in a Hobbesian commonwealth by the actions and responsibilities that are required of the sovereign if he is to fulfil the purpose of the office with which he has been trusted. Securing the peace and protecting the people: The sovereign’s role The right to full preservation is protected in the commonwealth in two ways: first, by the fact that individual subjects have given up their invasive rights under the second law of nature, and taken on duties to stand out of each others’ way when exercising their transferred rights. These duties must then be encoded as laws and enforced by the sovereign. Second, the right to full preservation is protected by the sovereign, whose responsibilities as sovereign include those to: secure and maintain the peace, protect individual subjects and provide and maintain the conditions necessary for a commodious life. When Hobbes describes the setting up of a commonwealth and the instituting of a sovereign he makes it clear that the purpose of such actions is to secure the peace and protection of individual subjects. The only way to erect [such] a Common Power, as may be able to defend them from the invasion of forraigners, and the injuries of one another, and thereby to secure them in such sort, as that by their owne industrie, and by the fruites of the Earth, they may nourish themselves and live contentedly; is, to conferre all their power and strength upon one Man, or upon one Assembly of men, … This done, the Multitude so united in one Person, is called a COMMON-WEALTH, in latine Civitas. This is the Generation of that great Leviathan, or rather (to speake more reverently) of that Mortall God, to which wee owe under the Immortall God, our peace and defence. (Leviathan, p. 227) So, we institute a sovereign in order to gain security and the conditions necessary to live an active and contented life.

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And because the End of this Institution, is the Peace and Defence of them all … (Leviathan, pp. 232–233) The sovereign is required to ensure that the commonwealth achieves or remains in a state of peace. And the sovereign must provide protection for the subjects. The passage from Chapter 30 of Leviathan quoted in part above can now be seen to describe this requirement. The Office of the Soveraign, (be it a Monarch, or an Assembly,) consisteth in the end, for which he was trusted with the Soveraign Power, namely the procuration of the safety of the people; to which he is obliged by the Law of Nature, and to render an account thereof to God, the Author of that Law, and to none but him. But by safety here, is not meant a bare Preservation, but also all other Contentments of life, which every man by lawfull Industry, without danger, or hurt to the Commonwealth, shall acquire to himselfe. (Leviathan, p. 376) Does the sovereign have ‘duties’? In the passage above, Hobbes uses the term obligation, to say that the sovereign has a moral obligation to procure the safety of the people. We can be satisfied that he means a moral obligation or duty because it comes from the law of nature, which is the moral law10 and to ‘the author’ of the moral law – God. Much has been made of the fact that Hobbes says that the sovereign owes duties to God rather than to the subjects and of the ‘fit’ between this and his insistence that the social contract is made between individuals and not between the sovereign and the subjects.11 We can be clear that there is no contract between the sovereign and the subjects and that there are therefore no contractual duties of sovereign to subject. And yet the sovereign does have duties and I suggest that he has two kinds of duties. First, he has the moral duty outlined in the passage above, to procure the safety of the people, which includes providing the necessary conditions for a commodious life. This moral duty is controversial in several ways. Depending on which view one takes of Hobbes’s moral theory, one might say, for example, that the theory, being subjectivist and egoistic, has no place for the notion of moral duty which is a deontological notion.12 Or one might say that these

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moral duties are duties held ‘in foro interno’13 only and so bind the sovereign in conscience but not in action.14 And so disagreements about the nature of the moral theory being described by Hobbes mean one can interpret what Hobbes means by the sovereign’s moral duties, in several ways. I shall leave these difficult issues concerning Hobbes’s moral theory aside and argue instead for a second type of duty held by the sovereign. As well as moral duties, the sovereign has duties that exist simply as requirements of the office of sovereign. As the passage above, from Chapter 21, states: it is the end or purpose of the office of sovereign ‘for which he was trusted with the Soveraign Power’ that the sovereign should procure the safety of the people. And there are real and dramatic consequences for the sovereign if he fails to do so. If the sovereign fails to protect the people then ‘the Subjects are absolved of their obedience to their Soveraigne’ (Leviathan, p. 272, squib) because as he famously tells us ‘the Obligation of Subjects to the Soveraign, is understood to last as long, and no longer, than the power lasteth, by which he is able to protect them’ (ibid., main text). And so, I argue, the Hobbesian sovereign, as well as having moral obligations (which, for the present purposes, I am leaving undefined) also has responsibilities, which he holds simply by being sovereign, to fulfil the end of the office he holds, namely to procure and maintain the safety of the people. Whoever is sovereign, she (or they) must protect the people and provide or maintain the conditions necessary for subjects to be able to preserve themselves and to have the basic freedoms necessary in order to live a commodious life. And the position of sovereign is tied to these responsibilities in such a way that one cannot be sovereign without fulfilling them. I can, therefore, call these responsibilities ‘duties’, not as moral duties but as duties in the sense of requirements of a job or position, such that those duties define the job or position, just as, say, duties to teach define the job of teacher. A person cannot be a teacher without teaching and carrying out the duties that make up the role or position of teacher. If the teacher fails to: take classes, explain what material is to be covered, instigate and chair discussion, instruct, etc., then she is no longer a teacher.15 It is these sovereign duties, to protect the subjects, ensure peace and provide or maintain the conditions necessary for the pursuit of a commodious life, that protect the right to full preservation of each

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subject. They protect the individual subject’s ability to exercise the rights that fall under the aggregate right to full preservation. For example, the right to freedom of movement can be exercised under a sovereign who legislates and governs to ensure that subjects are able to move freely about the commonwealth. If the sovereign were to, say, write and enforce a law that stated that all subjects must hold identity papers and not be allowed to move out of their own district, then the sovereign would be failing in her duties as sovereign and the subjects would be unable to exercise their right to freedom of movement. Duties owed to whom? If the duties I have described as attaching to the office of sovereign are not owed to the subjects, then to whom are they owed? Three possible options are: one, that they are owed to the office itself; two, they are owed to ‘the people’ who placed her in that position (analogous to the employer); or three, they are owed to no one. Yet, there is a difficulty with the second option, because, as I have already pointed out, Hobbes emphasises the lack of contract between the sovereign and the subjects.16 So, the duties are owed either to the office of sovereignty itself (or to the commonwealth), rather than to the subjects or to no one. The notion of the sovereign owing duties to the office of sovereignty or to the commonwealth does not ring true given that Hobbes does not, as far as I know, make remarks to this effect. There are many points in his argument where he could easily refer to duties to the commonwealth or to sovereignty itself but he does not. Even when he talks about the goal of peace he never talks of peace as the peace of the commonwealth or the king’s peace but always to the peace that is desired and pursued by individuals for their own benefit, not for the benefit of the commonwealth. This leaves us with the third option that the sovereign has duties as sovereign but these are not owed to anyone.17 As White points out, ‘… not all duties to do something involve a duty to anything. The duty of a judge to pass sentence is not owed to anyone’ (White, 1984, p. 27). This seems the best option. Hobbes makes it abidingly clear that he wants to avoid a contractual relationship between the sovereign and the subjects, and by making the sovereign’s duties, duties to no one this is avoided. At the same time it is also clear, as I have

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argued above, that the sovereign does have duties that he must perform if he is to fulfil the office of sovereign with which he has been trusted and if he is to achieve the end of that office namely, ‘the procuration of the safety of the people’ (Leviathan, p. 376).

Political significance of the sovereign duties These duties of the sovereign are not incidental. His (or their) right to rule is dependant upon his ability and willingness to carry them out. Indeed, if he should fail in his duty to protect the people then, as above, ‘[s]ubjects are absolved of their obedience to their Soveraign’ (Leviathan, p. 272, squib). And furthermore, it is the subjects who must decide when their obligation to obey the sovereign has ceased, for only they can decide when they are no longer being protected. They have held onto their right to full preservation. It has not been given up to the sovereign, and rights such as the right to self-defence would make no sense if they could only be exercised on the say so of the sovereign; so subjects must be free to make judgements as to when they are being protected and when not and as to who can protect them and who cannot. ‘The end of Obedience is Protection; which, wheresoever a man seeth it, either in his own, or in another’s sword, Nature applyeth his obedience to it, and his endeavour to maintaine it’ (Leviathan, p. 272). What could Hobbes mean by ‘wherever a man seeth it’ except that it is the man who decides where his protection lies? This latter point has potentially far reaching implications for the (supposedly absolute) authority of the sovereign and the rights of the subjects. If the subjects can decide that they are not being protected and if at the point of critical mass, the sovereign loses the right to rule, then his (the sovereign’s) authority cannot be said to be absolute. To argue comprehensively against the absolutism of the Hobbesian sovereign would take far more than this and cannot be attempted here. But the preceding argument about the right to full preservation and the duties that can be said to protect it, do at least suggest, that the absolute authority of the sovereign is undermined by the rights that Hobbes puts in place for the subjects. The right to full preservation, carried into the commonwealth by each subject rather than given up, combined with the sovereign duties outlined above can be said to provide the beginnings of an argument that

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Hobbes did, after all, intend that the sovereign’s power and authority be limited (though not divided) rather than absolute. Support from commentators? Jean Hampton would not grant that Hobbes limits the authority of the sovereign deliberately but she does argue that if we take the right to self-preservation seriously then Hobbes’s argument for instituting an absolute sovereign fails. She points out that each individual does, according to Hobbes’s argument, carry the right to self-defence into the commonwealth and she discusses the implications of this right, concluding that the self-defence right can be said to be ‘equivalent to the entire right to preserve oneself’ (Hampton, 1986, p. 201). Once this is admitted she argues that the implication must be that Hobbesian subjects themselves decide whether obeying the sovereign is conducive to their preservation or not ‘and hence makes the subjects the judges of whether or not they will obey any of the sovereign’s laws’ (ibid.). She argues that if they do ‘retain a right to determine whether or not to obey the sovereign’s laws, then the sovereign not only fails to be the ultimate decider of every issue but also is not the decider of the most important question in the commonwealth: whether or not he will continue to receive power from his subjects’ (ibid. p. 202). The conclusions Hampton draws from this are different from mine. Instead of reading the self-preservation right as one that has real purchase and curbs the authority of the sovereign, she reads it as demonstrating the failure of Hobbes’s argument for absolute sovereignty. ‘[W]e now see that Hobbes’s social contract argument is invalid: That argument cannot show that people, as he has described them, can institute what Hobbes defines as an absolute sovereign’ (ibid. p. 206). This raises a question for my interpretation. Should I not also conclude that the argument is invalid? The answer to this seems to me to turn on what Hobbes’s intentions are regarding the authority of the sovereign. If he is really trying to argue for the institution of an absolute sovereign and we understand that the self-preservation right allows subjects to decide whether or not (and when) to obey, depending on their assessment of their own safety, then it seems the argument fails, as Hampton argues. If, on the other hand, Hobbes deliberately puts in place rights for the subjects that will limit the authority of the sovereign, then his argument has not failed because

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it is not in the end an argument for absolute sovereignty, despite many remarks he makes that suggest his support for absolutism. Employing the principle of charity (according to which we hesitate before attributing fairly obvious mistakes to historical figures such as Hobbes), I would argue that it seems unlikely that he would have failed to see such an obvious problem with his argument as that attributed to him by Hampton. Recent commentators – Glimpses of a tempered sovereign Commentators on Hobbes generally remain convinced of his absolutism but there are some whose readings of certain passages and arguments in Leviathan lend at least partial support to my argument that the apparent absolutism of the Hobbesian sovereign is undermined by the rights of the subjects. A similar point to that above (that the subjects decide whether the sovereign can protect them and that this limits his authority) but in this case about initial authorisation is made by Conal Condren: Hobbes’s critics have never been slow to point out that the sovereign’s metarights of self-definition and self-legitimation effectively give it absolute power in a modern sense as well as in a seventeenth-century sense of being without legal limitation. The other side of the equation, however, is that it can never be given absolute authority, despite Hobbes’s final theory of contractual authorization. We cannot authorize self-destruction – that contradicts the very reason for entering society in the first place. As he put it in De Cive, we submit only for security and if that cannot be had, a man cannot be assumed to have submitted himself to anything. (De Cive, 6.3; quoted in Condren, 2000, p. 46) Here again, we can make sense of the apparent problem with authorisation once we say that the authorisation is conditional upon the sovereign fulfilling his duties. Edwin Curley also makes the point that we only owe the sovereign obedience if we are being protected and he argues that it is the subject’s right to decide whether the protection being offered by the sovereign merits obedience or not. ‘If he [the sovereign] has the power (and the will) to protect us, we owe him obedience. If he doesn’t, we don’t’ (Curley in Leviathan ed., 1994, p. xxxiv). And,

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Hobbes contractarian methodology does lead, inevitably, to some limitations on the subject’s duty to obey. What makes the covenant binding for Hobbes is the rationality of the consent it involves, whether that consent is given in an initial ceremony of institution, or in daily acts of obedience to the powers that be. If there are certain things no one can rationally consent to, then the covenant must involve some limits on the subject’s duty of obedience, however absolute it sometimes seems. (Ibid., p. xxxviii) He draws on Clarendon’s18 insight to push this point home. Those who think that Hobbes has given too much power to the sovereign should not worry because ‘if they will have patience till he hath finished his scheme of sovereignty, he will enfeeble it again for them to that degree that no ambitious man would take it up, if he could have it for asking’.19 Curley also reminds us of Chapter 21 of Leviathan where Hobbes outlines the liberty of the subject who may disobey the sovereign ‘without injustice’ under certain circumstances; such as commands to kill or wound himself, execute any dangerous or dishonourable office, etc. ‘If the subject has discretion to determine when these conditions are satisfied, as Hobbes seems to think he would when his self-preservation is at stake … then his liberty might be very great indeed’ (Curley in Leviathan, ed., 1994, p. xxxviii). Condren argues that Hobbes’s use of the notion of ‘representation’ as the defining characteristic of the office of sovereign, means that the sovereign ‘assumes an office no less than the individuals who consent to become subjects. And it is in this pervasive sense of reciprocal office, not contract itself, that Hobbes provided the sense of limitation which seems to be lacking if we take his notions of alienation or authorization in isolation … an office for Hobbes and for all his contemporaries, … was a role or responsibility carrying rights only for the sake of fulfilling duties’ (Condren, 2000, p. 45). Condren also draws different conclusions from mine on the rights of the subjects. He thinks that according to Hobbes, ‘[w]e alienate our rights from the natural condition’ (ibid., p. 43) and despite granting that ‘whatever rights the sovereign has, its subjects cannot be taken to abandon a right to self-preservation’ (ibid., p. 127). He thinks that we are mistaken if we see Hobbes as a liberal who advocates individual rights: ‘[W]e look in vain for what might be adequate guarantees of individual liberty against tyranny in Hobbes’s state’ (ibid. p. 52).

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I would argue however, that, given his acceptance that subjects cannot alienate the right to self-preservation and that the sovereign has duties as well as rights, Condren has already granted me the important part of my argument. All I require in addition is that the right to self-preservation is more extensive than a mere right to selfdefence, that the sovereign’s right to rule is conditional upon his carrying out the duties of his office, and that in order to exercise the right to self-preservation, subjects must be the judges of when the sovereign is a threat, all of which I have argued above. The judgements to be made as to when a sovereign is protecting such rights and when he is violating them are complex and difficult. Maintaining peace in the commonwealth will require restricting the liberties of some (rebels/law breakers, etc.). Judgements about the balance between the liberties of subjects (citizens) and the security of the society as a whole are always difficult and the subject of profound disagreements (no less so today perhaps, than in Hobbes’s time), and cannot be gone into here. What I am maintaining (contrary to the views of most commentators) is that Hobbes’s argument for government, in Leviathan, recognises the need for a balance and (deliberately) puts in place certain principles to protect the rights of the subjects and (possibly) to limit the power and authority of the sovereign. It is not possible to know for sure what Hobbes’s intentions are regarding the strength of the individual rights he describes and the curb on sovereign power and authority that is implied by them when they are seen to be protected by the sovereign’s duties as sovereign (leaving aside, as before, any moral duties the sovereign may have). In reconstructing Hobbes’s argument in the way I have, however, there are interesting implications both for the tenor of Hobbes’s political theory as a whole and for the strictly Hohfeldian way in which his description of individual rights has been analysed. Claire Finkelstein (2001) perhaps goes the furthest towards the view I am arguing for, that the right to self-preservation provides a check on the power and authority of the sovereign. She frames her argument around the retained right to self-defence arguing that this right holds more significance against the sovereign than against other subjects. ‘Arguably … the right of self-defense is primarily necessary against the sovereign, since he is the only person or entity who retains an entitlement to use the kind of force against which a right of self-defense in civil society might be necessary’ (Finkelstein, 2001, p. 356). This right, she argues, has considerable political importance

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as it is ‘the central protection citizens have against a government whose laws threaten, rather than advance, their interest in bodily security’ (ibid., p. 357). Its political significance, according to Finkelstein, lies in the fact that Hobbes says that ‘the duty of subjects to sovereign is extinguished when the sovereign is no longer able to protect them’ (ibid.). And she takes the argument further saying that ‘by retaining the right to self-defense, they have retained a natural right of revolution’ (ibid., p. 358). Her argument is weakened, however, by her use of a Hohfeldian analysis which leads her to say that the right to self-defence is ‘a mere liberty right’ and ‘thus the sovereign is under no obligation to respect the right to self-defense that citizens have, at least on the face of it’ (ibid). She is then forced to search for how the right might be of any use to the right-holder if it is only a liberty right and argues that the sovereign is only morally required to respect the right (in terms of his duty to obey the laws of nature in foro interno). This means that there is only a moral obligation rather than a political one. She concludes that the right only ‘plays an indirect role in ensuring the civil liberties of citizens’ (ibid, p. 359), but it is strengthened by the right to revolution that is implied as above and therefore ‘… it is not implausible to suppose that a sovereign who failed to respect the right of self-defense of his citizens would be a sovereign to whom citizens no longer owed their allegiance’ (ibid.). So, despite the recognition on the one hand of the significance of the inalienable right to self-defence, Finkelstein’s Hohfeldian analysis means that having defined the right to self-defence as a liberty right, she is prevented from regarding the duties that the sovereign has to provide, peace and security for subjects as providing any kind of protection for the retained right to self-defence.

Limitations of the Hohfeldian analyses of rights in Hobbes’s political theory As I have already mentioned, in relation to the second law of nature, discussion of Hobbesian rights in the last 50 years or so has largely been conducted using the Hohfeldian analysis with its terminology of liberty rights and claim rights. Commentators generally argue that all the individual rights in Hobbes’s theory are liberty rights or bare freedoms; rights, that is, that do not entail any duties on the part of others. It can then be argued that because there are no claim rights, there are therefore

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no substantive rights, no genuine political rights, in the theory. This Hohfeldian analysis does not accurately reflect the rights that Hobbes describes, however. First, it fails to capture the changes to certain rights that take place through the process he describes whereby individuals conform to the second law of nature.20 As I have already demonstrated, when individuals agree (under the second law of nature) to give up some of their liberties so that they can live together in peace and when they institute a sovereign who can protect them, their rights become protected; in the former case, by the duties (enforced by the sovereign once he is in place) of all other individuals not to attack or invade them and, in the latter case, by the rights to full preservation which they retain into the commonwealth and which become (indirectly) protected by the duties of the sovereign, as defined by that office, the end of which is to secure the peace and protect the people. In this chapter, I have been concerned only with the second set of duties (those taken on by anyone accepting the office of sovereign) and with the right to full preservation, which I have argued is protected by those duties. The first problem with the Hohfeldian analysis, in relation to this set of duties and their relationship to the right to full preservation, is that it cannot account for any rights that are protected, other than by directly correlated duties owed to the right-holder. The second problem is that the Hohfeldian analysis does not allow for changes to rights, that is, for one type of right to become another type of right or to change from, say, a simple liberty right to a more complex right that also includes claims or entitlements. Of course, it is implicit in the Hohfeldian approach that rights are seen as simple and therefore, that apparently complex rights can always be broken down into the simple, atomic rights (claim rights, liberty rights, etc.) that make them up.21 My argument, however, is that the right to full preservation changes from being a simple (though aggregate) liberty, to a protected right, once it becomes protected (indirectly) by the duties of the office of sovereign, but that it does not change into a Hohfeldian claim right because it is not directly correlated with the sovereign’s duties, nor does the right itself entail any such duties. The right to full preservation starts out as a right of nature, an aggregate right that includes the right to self-defence and the right to resistance as well as rights to freedom of movement and to work. All these can be categorised, in Hohfeldian terms, as liberty rights or bare freedoms when they are held in the state of nature. They are not correlated with

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the obligations of others and are described by Hobbes as being of ‘little use or benefit’ to the right-holder (Elements of Law, 1994b, p. 80) when they are held as bare freedoms by all individuals in a state of nature. And even if a Hohfeldian analysis were to allow that a liberty right in the state of nature could change to a claim right in a Hobbesian commonwealth, the problem would not be resolved because the right to full preservation does not become a genuine Hohfeldian claim right in the Hobbesian commonwealth. Rather than pushing Hobbesian rights into categories they do not quite fit, it might be better to simply describe the rights as Hobbes describes them and try to discuss their implications without resorting to Hohfeldian terminology.22 And so, for example, we might speak of protected rights rather than claim rights (as above). What starts out as a liberty or freedom can become protected (in this case indirectly) by the duties of others without, as it were, losing its status as a liberty/freedom. Rather, it has changed from an unprotected liberty to a protected liberty. I will return to this difficulty when I look at the theoretical implications of Hobbes’s theory of rights.

Implications for Hobbes’s political theory If Hobbes does describe a right to full preservation (rather than the narrow self-defence right that has been assumed by commentators) as an aggregate right that is carried into the commonwealth and if I am right in arguing that the sovereign takes on duties to protect the people, simply by accepting the role of sovereign, then with these sorts of (protected) rights for individuals living in a Hobbesian commonwealth, the relationship of sovereign to subject no longer looks like one of absolute power and authority. I will not develop these thoughts further here. To argue that Hobbes did not intend (at least in Leviathan) to argue for absolute sovereignty would require much more, as I have said, but what I can say is that I have demonstrated that Hobbes’s political theory does, after all, include some substantive rights for subjects. And the sovereign’s power and authority may therefore have some theoretical limits. This would mean in turn that Hobbes’s theory is not as far removed from Locke’s as has usually been assumed and that Hobbes’s particular (and neglected) contribution to rights theory merits a closer look than it has been given in recent Hobbes scholarship.

Part III Hobbes and Theories of Natural Law and Natural Rights

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5 The Natural Rights Tradition – With or Without Hobbes?

The discussion of Hobbes’s theory of rights in the last two chapters has focussed on the content of particular individual rights within the theory, in the context of the Hohfeldian analysis that underlies much discussion of Hobbesian rights. And while I have argued that Hobbes’s theory of rights contains substantive rights for individuals, I have yet to examine in any detail the possibility that it is a natural rights theory. In this chapter I want to examine the relationship of Hobbes’s theory of rights to the theories of natural law and natural rights that were prevalent in the period before and during Hobbes’s lifetime. In terms of the content and political significance of the individual rights described in the theory, Hobbes has often been seen as holding a much weaker or less substantial theory of rights than Locke, who is usually regarded as having put natural rights at the centre of political theory in a way that was to come to dominate liberal political philosophy. And Locke’s theory of rights is a theory of natural rights with a traditional natural law basis.1 But what of the theoretical basis and justification of Hobbes’s theory of rights? Does it owe anything to theories of natural law and natural rights? Could one describe Hobbesian rights as natural rights? There has been renewed interest in recent years in the relationship between Hobbes’s political theory and theories of natural law and natural rights, and some Hobbes scholars have argued that Hobbes is closer to this tradition than has been assumed (Bobbio, 1993; Murphy, 1994; Lloyd, 20012). These writers have concentrated on the question of whether Hobbes’s theory is one of natural law. There is an earlier precedent in the work of Howard Warrender (1957, 1969), 125

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who despite arguing that Hobbes’s moral theory can be characterised as one of natural law, also argues, nevertheless, that there is no substantive theory of natural rights in the theory.3 Richard Tuck has argued that Hobbes’s theory of rights owes much to that of Hugo Grotius’s theory of natural law and natural rights and that it follows a particular strain of that theory which he refers to as ‘conservative rights theory’ (Natural Rights Theories, Their Origin and Development, 1979; Hobbes, 1989; Philosophy and Government 1572–1651, 1993). There has been some subsequent criticism of this view4 which I will discuss and add my own comments to below. I shall argue that Hobbes does not hold a theory of natural rights, in the sense that theories of natural rights have been understood to depend for their philosophical justification on theories of natural law. I also argue that Hobbes does not hold a ‘conservative’ natural rights theory, in Tuck’s terminology, and that his theory has little (of importance) in common with Grotius’s theory.

The background The history of rights theory is, of course, the history of natural rights theory. It was in the context of the natural law theories of the Middle Ages and early modern period that the notion of the subjective right, that is, of individual rights as we now understand them, began to emerge. The subjective right is now such a vital part of modern political discourse that it is perhaps difficult to reconcile the importance it holds as a political concept with the difficulties it has encountered with regard to its philosophical justification. And it is particularly the justification of natural rights that has proved so difficult to sustain. It is no exaggeration to say that theories of natural rights have been significantly discredited. The philosophical criticism of natural rights theory, with its perceived dependence upon theories of natural law, has been sustained and effective since Jeremy Bentham famously referred to natural rights as ‘nonsense upon stilts’,5 and since David Hume demonstrated the logical mistake involved in deducing moral conclusions from factual (or natural) premises.6 And despite the fact that theories of natural law and natural rights continue to be proposed and defended by writers as important as John Finnis (1980)7 and that the notion of natural rights now referred to

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as ‘human rights’ continues to gain credibility in international legal and political discourse, there is no getting away from the fact that a theory of natural rights is now difficult to defend philosophically in a way that might convince any more than a minority of believers. Theories of natural law are now usually discussed in the context of providing accurate historical philosophical analysis of those writers who make up the tradition, or to give insight and continuity to the understanding and development of many important political, moral and legal concepts and ways of thinking, or as expressing a commitment to certain theological or metaphysical premises, often attached to Catholic philosophy. Theories of natural rights are similarly discussed in these ways because of their perceived dependence upon (natural law) premises that are no longer generally sustainable. Jeremy Waldron overstates the case but makes the point when he says, ‘no one now uses the phrase [natural rights] except in a disparaging sense’.8 There is a lively debate that has been taking place regarding the relationship of natural law theory to theories of natural rights and I shall say more about that below. The question for this chapter is where we should place Hobbes in this history. Does his theory of rights form part of a continuous history of natural rights and natural law theory or does it break from that history by being sufficiently different to mark a departure from it? Before I can start to develop an argument that Hobbes does depart significantly from traditional natural rights theories, I need to say something about the connection between theories of natural rights and the theories of natural law they are seen as dependent upon. This is a connection that is often though not always assumed and I shall say more about disagreements on this point below, but for now I shall assume the view that theories of natural rights gradually emerged from (and were philosophically dependent upon) theories of natural law. I hope that in doing so I will not seem to some to be tilting at windmills. This may be a danger for those who think it is mistaken to see theories of natural rights as having emerged from theories of natural law, or to be ‘derived from’ theories of natural law (d’Entrèves, 1951) and specifically those who argue that Hobbes derives natural law from natural rights rather than the other way around (Strauss, 1952; Zuckert; Tuck, 1979). For the moment I will address the more common view.

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Traditional natural law theories The natural law tradition is a long one and the theories grouped under the term are varied and complex.9 Their importance and influence should not be underestimated and is not diminished by their widespread philosophical rejection in the last 200 years or so. Indeed, we cannot think about such notions as individual rights or human rights without using the conceptual tools of natural rights and natural law, and once we try to lift the notion of individual rights out of the natural rights and natural law structure that supports it, we are left with a very big theoretical hole to fill. Such is the modern problem of providing a philosophical justification for individual rights. It is necessarily simplistic perhaps, to stand back and set out in the most general terms, the premises that characterise natural law theories, in order to provide a crude calculation of Hobbes’s position in relation to the natural law tradition. And yet that is, what I propose to do, not least because it is those natural law premises that have been at the heart of the most widely accepted criticism of natural law theories. My argument is that Hobbes turned away from a natural law justification for rights and instead attempted a modern, secular justification and in so doing he set himself apart from traditional theories of natural rights. First, I will discuss Hobbes’s relationship to theories of natural law only in terms of a group of premises that natural law theories have been attacked for holding. It is because of one or more of these premises that natural law theories have largely been rejected by political and moral philosophers from Hume and Bentham onwards. This approach means that I will avoid detailed discussion of much Hobbes scholarship, which is conducted from within a natural law perspective or at least from a perspective that is not hostile towards natural law theories. This scholarship often displays a complexity and richness, in its discussions of Hobbes’s theory, in relation to the natural law theories that make up the intellectual soup of Hobbes’s intellectual environment. And there is much that can be illuminated in Hobbes’s writing by that analysis. But my project is concerned only with the broader issue of whether or not Hobbes successfully avoids a commitment to those premises or theses that have been

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seen as unsustainable in most modern, political philosophy. I will mention some of this scholarship when I move from discussing natural law to natural rights below but I will leave it out of the present discussion. What notions do the many variations of natural law theory have in common that may have been so damaging to its philosophical standing? Several are mentioned by Cicero in the following frequently quoted passage. One is the notion of an independently existing universal law that can be known by all rational beings and that applies to all people at all times. Another is that this law is known by reason. True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge. (Cicero, De Republica, III, xxii, 33, quoted in d’Entrèves, 1951, pp. 20, 21) And natural law theory has usually connected the notion of a natural law to God as the creator of that law, … it is clear that the whole community of the universe is governed by the divine reason. This rational guidance of created things on the part of God … we can call the Eternal law. [Now] since all things which are subject to divine Providence are measured and regulated by the Eternal law … it is clear that all things participate to some degree in the Eternal law, in so far as they derive from it certain inclinations to those actions and aims which are proper to them.

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But, of all others, rational creatures are subject to divine Providence in a very special way; being themselves made participators in Providence itself, in that they control their own actions and the actions of others. So they have a certain share in the divine reason itself, deriving therefrom a natural inclination to such actions and ends as are fitting. This participation in the Eternal law by rational creatures is called the Natural law. (Aquinas, Summa Theologica, Ia 2ae, quae. 91, art. 1 and 2, quoted in d’Entrèves, 1951, p. 39) Four hundred years later, Hugo Grotius is famous for having hypothetically taken the theological premise out of the theory,10 saying, after putting forward his theory of natural law, ‘[a]nd what we have said would still have great weight, even if we were to grant, what we cannot grant without wickedness, that there is no God, or that he bestows no regard on human affairs’ (Grotius, 1853, Prolegomena, 11, p. xlvi). Grotius also argues that certain rational propositions could not be denied even by God because to do so would be self-contradictory. Natural law is so immutable that it cannot be changed by God himself. For though the power of God be immense, there are some things to which it does not extend: because if we speak of those things being done, the words are mere words, and have no meaning, being self-contradictory. Thus God himself cannot make twice two not be four; and in like manner, he cannot make that which is intrinsically bad, not be bad. For as the essence of things, when they exist, and by which they exist, does not depend on anything else, so is it with the properties which follow that essence: and such a property is the baseness of certain actions, when compared with the nature of rational beings. And God himself allows himself to be judged of by this rule. (Grotius, 1853, bk I, ch. I, X., p. 5) Here we have a move to justify natural law not by reference to God’s moral authority but by reference to an objective, perfect rationality and to the objective existence of goodness and badness as properties attaching to essences. This intellectualist version of natural law theory can be seen as coming from a Thomistic line of development that

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can be contrasted with the voluntaristic version that has its roots in the Augustinian notion of the importance of God’s will, which cannot always be known by humans. According to Aquinas, we have all that is necessary in ourselves, in our reason, to understand the natural law perfectly. The laws that come from the natural law apply to all people by virtue of their shared rational nature and can overrule the positive laws made by men: ‘human law’ in Aquinas’s terminology. The natural law, which all men can understand by virtue of their reason, applies to ethics and politics as well as to law itself. ‘The relation between law and morals is the crux of natural law theory. … The very enunciation of natural law is a moral proposition. The first precept of natural law, says Thomas Aquinas, is “to do good and to avoid evil”’ (d’Entrèves, 1951, pp. 80, 81; and see Grotius above). In the scholastic version of natural law theory, certain other precepts are deduced from this first precept that correspond to ‘the order of our natural inclinations’ such as self-preservation. … [R]ational creatures are also subject to God’s provident direction, but in a way that makes them more like God than all other creatures. For God directs rational creatures by instilling in them certain natural inclinations and capacities that enable them to direct themselves as well as other creatures. Thus human beings also are subject to the eternal law and they too derive from that law certain natural inclinations to seek their proper end and proper activity. These inclinations of our nature constitute what we call the natural law; they are the effects of the eternal law imprinted ‘in’ our nature. Thus even the scripture suggests that our natural ability to reason (by which we distinguish right from wrong) in which the natural law resides, is nothing more than the image of God’s own reason imprinted on us. (Aquinas, Summa Theologica, transl. Manuel Velasquez, question 91, in Velasquez and Rostankowski, 1985, p. 47) Aquinas here links the presence of God’s eternal law in human beings to the Aristotelian notion of a final cause or end towards which human beings naturally strive. The natural inclinations we have, for example, to preserve ourselves, are defined as the working of the natural law within us. Self-preservation is a morally justified

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endeavour and it is morally justified because it comes from God via the law of nature. This briefest of brief sketches of natural law theory illustrates to some extent, the premises or theses of natural law that have invited so much philosophical scepticism in the last 200 years or so.

Common premises/theses of natural law theories (or what are seen to be so) A list of the natural law premises that have come under attack might be something like this: 1. The theological premise Natural law comes from God. It is God’s law, which gives it its moral authority. This premise has greater philosophical significance, perhaps, in the natural law theories of the voluntarist tradition of Augustine, William of Ockham, Jean Gerson and the early Protestant natural law theorists and later in the writing of Samuel Pufendorf, than in the intellectualist tradition of Aquinas and other scholastics like Gregory of Rimini and later, Grotius. For the voluntarists, God’s will is required (and is not always knowable) as the source of natural law, while for the intellectualists, human reason shares in God’s reason and can, as it were, work out the natural law without direct input from God. Indeed, as can be seen from the quotation above, Grotius pushed this notion to the point where not only is God not required as the author of natural law but He is actually subject to natural law.11 2. The metaphysical/metaethical premise Natural law exists outside human beings – in the fabric of the universe or in the commands of a super-human legislator or in ideals of justice and morality or in the essences that give rise to moral qualities. Whichever of these the theory in question posits as the source of natural law, it can then be argued that there is consequently an objective basis for the law of nature and the law will be binding upon all persons at all times. 3. The epistemological premise Natural law is known to all human beings by reason, which is shared by all rational beings. Reason is often analysed as God given and

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therefore created to fulfil God’s purpose. This makes the ‘fit’ between reason and natural law a perfect one. Reason itself, however, can be used, as it is by Grotius, without the theological premise. Theological premise or not, the role assigned to reason by natural law theory is a powerful one befitting a strongly rationalist theory. The ‘natural light’ of ‘right reason’ is what gives us knowledge of natural law.

Hobbes and the premises commonly attacked 1. The theological premise Despite the arguments of the Taylor/Warrender tradition that Hobbes’s moral theory relies on God as the author of the laws of nature, there is little evidence to support the argument that the theory relies on God. And even if it is granted that Hobbes might have believed that the laws of nature were the commands of God, or that it is only as the commands of God that they have the status of laws, in the text of Leviathan this is put forward hypothetically in the last paragraph of Chapter 1512 and alongside the main non-theological argument that the laws of nature are precepts of reason by which we know what will help us to ensure our preservation.13 The final paragraph of Chapter 15 has caused and continues to cause controversy, and is greatly puzzling in its implications. If Hobbes means that in fact they are not the commands of God then he seems to be saying they are not truly laws and yet he seems to keep treating them as laws, or at least, as rules with moral standing. If he does mean that they are the commands of God then he has a theological premise for the laws of nature which seems to contradict many other statements that imply they are simply rules calculated to better our chances of self-preservation and a peaceful coexistence. This takes us into the territory of the continuing debate about the nature of Hobbes’s moral theory. All that is needed here is to make the simple point that in Hobbes’s theory there is plenty of scope for arguing against the presence of a theological premise. 2. The metaphysical/metaethical premise Here the position seems relatively straightforward. Hobbes’s clearly stated materialism and nominalism does not allow him to countenance the existence of any other sorts of entities whether they are essences, ideals, objectively existing values or anything else that is metaphysically extravagant.

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3. The epistemological premise A useful remark from Hobbes to note here is the following from the Elements of Law: In the State of Nature, where every man is his own judge, and differeth from other concerning the names and appellations of things, … it was necessary that there should be a common measure of all things that might fall in controversy; as for example: of what is to be called right, what good, what virtue, what much, what little, what meum and tuum, what a pound, what a quart, etc. … This common measure some say, is right reason: with whom I should consent, if there were any such thing to be found or known in rerum natura. But commonly they that call for right reason to decide any controversy, do mean their own. But this is certain, seeing right reason is not existent, the reason of some man or men, must supply the place thereof; and that man or men, is he or they, that have the sovereign power. (Elements of Law, II.10.8) On the face of it, Hobbes does not give any more credence to the notion of right reason than he does to the metaphysical entities of premise 2. This is not to say that there are no rationalist elements to Hobbes’s thinking or to deny that the laws of nature are precepts or rules ‘found out by Reason’ (Leviathan, p. 189). But he does not grant to reason the power to discover ontologically extravagant entities such as ‘God’s eternal law’ or essences or ‘natural justice’. His computational definition of reason famously states that it ‘is nothing but Reckoning (that is, Adding and Subtracting) of the Consequences of generall names agreed upon, for the marking and signifying of our thoughts’ (Leviathan, p. 111). And he points out that this process is always prone to error and even where the agreement of many is achieved this is no guarantee of certainty ‘no more that an account is therefore well cast up, because a great many men have unanimously approved it’ (Leviathan, p. 111). So, there is no certainty to be achieved by the mere application of reason and no special power or privileged access to knowledge provided by it.

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Conclusion It is in the nature of Hobbes’s theory and Hobbes scholarship that there is endless controversy about almost every aspect of the theory. This means that a simple exercise such as that above is unlikely to produce any clear-cut answers. What it does demonstrate, I hope, is that whatever the theory is, it is not straightforwardly a natural law theory. It is not indisputably a theory of natural law in the way that the theories of Aquinas or Grotius are because it cannot be said that any of the standard natural law premises are incontrovertibly held by Hobbes. Indeed, for premises 2 and 3 it would take a lot of argument to make the case that they form part of Hobbes’s theory at all. Premise 1 is perhaps less clear but also arguably less important, given the ease with which natural law theory can survive without it.

Natural rights The precise relationship of natural rights to natural law is a disputed one. What might be described as the commonsense view is that theories of natural rights emerged out of theories of natural law. Historically, theories of natural law precede theories of natural rights, which do not start appearing until the Middle Ages. Philosophically, there is controversy of a chicken and egg sort about whether natural rights are derived from natural law or natural law is derived from natural rights and in which writers these attempted derivations take place. And more generally, there is controversy about how dependent or independent the theories of natural law and natural rights are in relation to one another. On natural law in general d’Entrèves argues that the theory of natural rights represents a turning point where medieval theories of natural law are replaced by theories of natural rights in which the individual and her rights are put at the centre of political theory.14 And on Hobbes’s theory specifically, Leo Strauss, for example, famously argues that Hobbes puts the right of nature first and derives the law of nature from it.15 More recently, this view has been defended by Ernest Fortin, Michael Zuckert and others including Tuck.16 Brian Tierney attacks this position and one of his counterarguments is simple and seemingly convincing. Quoting Hobbes’s remark in De Cive that ‘Law is a fetter, Right is freedome, and they differ like contraries’17, he argues that ‘one cannot

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derive a fetter from a freedom. Evidently Hobbes did not derive natural law from natural right’.18 One would not want to argue with this logic but ruling out that sort of strict derivation is not to defeat Strauss’s point that for Hobbes, political theory takes individual rights as the starting point and from that builds the rest of the theory including those laws that must be obeyed if we are to successfully exercise our rights. If exercising the right to full preservation requires that certain freedoms be protected then, one can argue, people will be able to reason to the best laws for achieving that end. This is not to say that the laws are themselves derived from the right to full preservation or any other rights but rather that the rights provide reasons why there need to be laws. For Hobbes the untrammelled freedom of the right of nature can only lead to chaos and danger. Invasive rights must be given up and the remaining justified rights must be protected. The laws of nature command behaviour that will aid that protection. To return to the commonsense view mentioned above, whereby theories of natural rights are seen to emerge out of theories of natural law, one can start by looking at some concepts within natural law theory, such as that of equality that act as stepping stones to the notion of natural rights.19 D’Entrèves quotes Cicero on this point: No single thing is so like another, so exactly its counterpart, as all of us are to one another. Nay, if bad habits and false beliefs did not twist the weaker minds and turn them in whatever direction they are inclined, no one would be so like his own self as all men would be like all others. And so, however we may define man, a single definition will apply to all … For those creatures who have received the gift of reason from Nature have also received right reason, and therefore they have also received the gift of Law, which is right reason applied to command and prohibition. And if they have received law, they have received justice also. Now all men have received reason; therefore all men have received justice. (Cicero, De Legibus, I, x, 29; xii, 33, quoted in d’Entrèves 1951, pp. 21, 22) Natural law applies to all equally and is accessible to all equally. All persons are equally endowed with reason and therefore have equal access to the natural law. There is also the notion of justice here and

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running through natural law theory is the juxtaposition of ‘natural’ justice and the imperfect world, which should be brought into line with it. It could be said that these two notions represent the beginnings of a natural rights theory – all individuals are equal and each deserves justice that accords with the ideal ‘natural justice’ of the law of nature rather than that decided by the mere positive laws of humans. It is a short step from there to the claim that each individual has a right to her due and from that to a list of the various ‘rights’ of each individual. But it is not until the Middle Ages that the language of rights first appears and not until the seventeenth century that we find ‘the classic texts of rights theory, stretching from Grotius through to Locke’ (Tuck, 1979, p. 2; Finnis, 1980).

The emergence of natural rights Tuck20 traces the emergence of the modern notion of a right to the medieval scholars who interpreted Roman law, ‘[i]t is among the men who rediscovered the Digest and created the medieval science of Roman law in the twelfth century that we must look to find the first modern rights theory, one built round the notion of a passive right’. What Tuck means by a passive right is ‘a right to be given or allowed something by someone else’, and he contrasts it with an active right which is ‘the right to do something oneself’ (ibid., p. 6). An active right implies control of the right-holder over that which he has the right in. According to Tuck, debate between those who see rights as fundamentally passive and those who see rights as fundamentally active characterizes much of the writing on rights from the fourteenth to the sixteenth centuries (and to some extent carries on today in the will and interest theories of rights). The point is illustrated in the following passage from Dominican theologian Silvestro Mazzolini da Prierio writing in 1515: Dominium, according to some people, is the same thing as ius. So that anyone who has a ius in something, has a dominium over it; and anyone who has a ius to the use of something, has dominium in it, and vice versa … According to other people, it is not identical, for an inferior does not have dominium over a superior, but he may have a ius against him. Thus for example a son has a ius to be fed by his father, and the member of a congregation has a ius to

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receive the sacrement from a prelate, etc. So they say, to have dominium implies that one has a ius, but not vice versa; for in addition to a ius one must have superiority. (S. Mazzolini da Prierio, Summa Summarum quae Silvestrina nuncupatur, I, Bologna, 1515, quoted in Tuck 1979, p. 5) The use of ius in this passage is remarkably close to the way ‘right’ is used by some theorists today. So, by the early sixteenth century we have an example of the use of the notion of a subjective right that needs no translation or further interpretation. The journey to this early natural rights theory via Roman law and the natural law theories of medieval theologians is, however, a complex, not to say tortured one. Aquinas’s theory of natural law, for example, is generally seen as lacking a theory of natural rights. Tuck puts it in the following way, … despite his use of the idea of natural dominium, his general theory (and this is of course true of all thirteenth-century theories) was not a genuine natural rights theory. … As Aquinas said, the ius naturale is neutral in the areas of personal servitude and private property, and that cuts both ways. There is no prima facie right to either servitude or liberty, either private property or common possession. It is the essence of a natural rights theory that it attributes prima facie rights to natural men; Aquinas explicitly avoided doing so, and refrained from following up the implications of a natural dominium utile. The most important area which his theory left out, and which was left unconnected with any rights theory for a hundred years or so, was the area of natural liberty. In Aquinas, men do not have a prima facie natural right to liberty any more than they have a prima facie natural right to dominate other men. (Tuck, 1979, pp. 19, 20) Not until Jean Gerson, Chancellor of the University of Paris, writing in 1402, do we see what Tuck calls a ‘fully fledged natural rights theory’. Gerson gives an account of a ‘ius’ as a facultas, a faculty or ability, which enabled him ‘to assimilate ius and libertas,’ right and liberty (ibid., p. 26). ‘Ius is a dispositional facultas or power, appropriate to someone and in accordance with the dictates of right reason … (Gerson, 1402, in P. Glorieux ed., 1962, quoted in Tuck, 1979, p. 26).

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‘Libertas is a facultas of the reason and will towards whatever possibility is selected … Lex is a practical and right reason according to which the movements and workings of things are directed towards their ordained ends’ (Gerson, 1400–15, ibid., pp. 26–27). It was this definition of a right as a faculty, Tuck argues, that made it possible to associate a right with a liberty and therefore to see a right as a liberty. This, together with the notion of a right connected with that of dominium (implying sovereignty or control over whatever one has the right in) marks the emergence of what he calls ‘a radical natural rights theory’ that was different from the theory of ‘passive’ rights that had come out of the twelfth-century theorists. They had converted the claim-right theory of the twelfth century completely into an active right theory, in which to have any kind of right was to be a dominus, to have sovereignty over that bit of one’s world – such that even a child had sovereignty over its parents when it came to questions of its welfare. (Ibid., p. 28) It is worth noting that Tuck’s historical tracing of the notion of a right is tied up with his own analysis of the theory of rights and his interest in the contrast between active and passive rights which he sees as emanating from different strains in early discussions of rights. I have tried to restrict my comments to his description of the emergence of rights theories but inevitably his own notion of what distinguishes two notions of rights comes into that description. I shall say more about this below, when it becomes relevant to his analysis of Hobbes’s theory of rights. John Finnis gives a very short history of the use of the word ius or jus in which he agrees with Tuck that it was first used in Roman law and that Aquinas did not use it to denote ‘a right’. On Aquinas’s use of the word he says, [t]he primary meaning, …, is ‘the just thing itself’ (and by ‘thing’, as the context makes clear, he means acts, objects, and states of affairs, considered as subject-matters of relationships of justice). One could say that for Aquinas ‘jus’ primarily means ‘the fair’ or ‘the what’s fair’; indeed, if one could use the adverb ‘aright’

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as a noun, one could say that his primary account is of ‘arights’ (rather than of rights). (Finnis, 1980, p. 206) Finnis contrasts Aquinas’s use of ‘ius’ with that of Suarez (1548–1617) writing more than 300 years later: ‘Here the “true strict and proper meaning” of “jus” is said to be: “a kind of moral power [ facultas] which every man has, either over his own property or with respect to that which is due to him”’ (Suarez, De Legibus, 1612, I, ii, p. 5, quoted in Finnis, 1980, pp. 206–207). This change, which Finnis calls the watershed in the use of the word ‘jus’, corresponds to the change described by Tuck as having taken place 200 years earlier. For the purposes of this discussion it does not matter exactly when this change took place (and Finnis does not specify when it took place, only that it was some time between when Aquinas and Suarez were writing). What does matter is the fact that it took place and that it was in the writings of theologians and natural law theorists that discussions of what we would call natural rights first began.

Mature natural rights theories Two important natural rights theorists who were contemporaneous with Hobbes were Hugo Grotius (1583–1645) and Samuel Pufendorf (1632–94) both of whom had incorporated rights into their natural law theories. I will only discuss Grotius’s theory in any detail as it is of more relevance in terms of the many claims that have been made (particularly by Tuck and his followers) about its influence on and closeness to Hobbes’s theory. Grotius’s natural law theory certainly incorporates a theory of natural rights, although he stops short of putting the rights of individuals above the rights of the state.21 The right to defend one’s life does not extend to a right to defence against the sovereign, according to Grotius. Once we are in a commonwealth with laws and a system for making judgements and deciding punishments, Grotius says that our right to preserve ourselves must be given over to the state. That private war may be lawful, so far as Natural Law goes, I conceive to is sufficiently apparent from what has been said above, when it was shewn, that for any one to repel injury, even by force,

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is not repugnant to Natural Law [Chap. II.]. But perhaps some may think that after judicial tribunals have been established, this is no longer lawful: for though public tribunals do not proceed from nature, but from the act of men, yet equity and natural reason dictate to us that we must conform to so laudable an institution; since it is much more decent and more conducive to tranquility among men, that a matter should be decided by a disinterested judge, than that men, under the influence of self-love, should right themselves according to their notions of right. (Grotius, 1853, bk I, ch. III, I, 2, p. 95, my emphasis) Grotius does not see the right to self-defence as inalienable and in that sense his is a weaker theory of rights than Hobbes’s or, to put it another way, we could say that with Grotius we do not yet have a fully fledged political natural rights theory in the Lockean tradition, that is, one that makes the protection of the rights of individuals, the purpose and end of government. For Grotius, rights, despite their ‘natural’ status, can and sometimes must be given up to the sovereign. The sovereign’s rights are seen as superior to and take precedence over the rights of individuals, … all Men have naturally a Right to secure themselves from Injuries by Reisistance … But civil Society being instituted for the Preservation of Peace, there immediately arises a superior Right in the State over us and ours, so far as is necessary for that End. Therefore the State has a Power to prohibit the unlimited Use of the Right towards every other Person, for maintaining publick Peace and good Order, which doubtless it does. Since otherwise it cannot obtain the End proposed; for if that promiscuous Right of Resistance should be allowed, there would be no longer a State, but a Multitude without Union … (Grotius, De Jure Belli ac Pacis, bk I, ch. IV, II, p. 1, quoted in Tuck, 1979, pp. 78–79) Martin Harvey goes so far as to say the following: What becomes of primary importance in Grotius … is his unambiguous treatment of subjective rights qua disposable personal possessions/assets. … Grotius thus explicitly conceives of liberty as

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an entirely disposable asset with which rights bearing creatures may either foolishly or prudentially choose to part. … For Grotius, either individually or collectively we may enslave ourselves as we see fit – hence, the complete commodification of natural right essential to the creation of an absolute sovereign.22 Harvey’s comments are in the context of a discussion of Tuck’s thesis that Hobbes’s theory of rights is a theory of natural rights that owes much to Grotius and specifically to what he characterises as the ‘conservative, authoritarian’ strain in Grotius’s theory. Instead of seeing Hobbes as an exception in a liberal tradition of rights theories as others have done (see, e.g., Warrender, Condren, Baumgold, Ryan). Tuck argues that there is also a tradition of conservative, authoritarian rights theories stretching from the Middle Ages to Grotius and Selden, all of which support slavery and absolutism and emphasise the alienability of all individual rights and further, that despite some differences, Hobbes should be seen as belonging to this group of natural rights theorists. So, rather than seeing the history of natural rights theories as leading inexorably towards the revolutionary liberal theories of the eighteenth century, Tuck’s analysis draws two distinct threads out of the history of natural rights theories. ‘An important conclusion to which one is forcibly led is that most strong rights theories have in fact been explicitly authoritarian rather than liberal’ (Tuck, 1979, p. 3). This may sound like a contradiction in terms but Tuck argues that there is evidence of authoritarianism in the writings of several political theorists who have contributed to the theory of natural rights and that these natural rights theories are themselves authoritarian in nature and therefore lend themselves to a defence of authoritarianism: The medieval rights theorists, Molina, Grotius, Selden (one of the most important and yet neglected of the seventeenth-century figures), Selden’s followers and Hobbes all openly endorsed such institutions as slavery and the absolutist state. It is true that more liberal rights theories developed out of this conservative and authoritarian tradition, and that Grotius was the vital figure here; in his early works and to some extent in De Iure Belli ac Pacis itself he provided a theory which could be read in a liberal way, as it was in their different manners by the English radicals of the sixteen forties and by John Locke. But the Grotian origins of these liberal

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theories cannot be ignored, for they were always uneasily close to their authoritarian counterparts. When Rouseau repudiated the entire tradition as conservative, and chose Grotius as his main target, his instincts were absolutely right, however unfair he may have been to liberals such as Locke. (Ibid.) What does Tuck mean when he says that Hobbes is a conservative and authoritarian thinker on rights and that he is indeed part of a tradition of such thinkers? He picks Grotius as the writer to whom both threads mentioned above can be traced: ‘Grotius was both the first conservative rights theorist in Protestant Europe and also, in a sense, the first radical rights theorist’ (ibid., p. 71). De Jure Belli ac Pacis Libri Tres (1625), according to Tuck, contains elements of both types of rights theory. ‘The book is Janus-faced, and its two mouths speak the language of both absolutism and liberty’ (ibid., p. 79). After Grotius, the theory was split into two separate theories, each espoused by opposing political groups, particularly during the English civil war: The two groups can be characterised as the conservative and the radical rights theorists, the first sceptical about the principle of sociability but condoning slavery and absolutism, dominated by Selden (with Hobbes a somewhat deviant member), while the second held fast to the principle of interpretive charity, and was dominated by the radical English pamphleteers of the 1640s. (Ibid., p. 81) In reference to the conservative rights theories, Tuck quotes the following passage from Grotius, condoning first slavery and then the absolute power of the state over individuals: It is lawful for any Man to engage himself as a Slave to whom he pleases; as appears both by the Hebrew and Roman Laws. Why should it not therefore be as lawful for a People that are at their own Disposal, to deliver up themselves to any one or more Persons, and transfer the Right of governing them upon him or them, without recovering any Share of that Right to themselves? (Grotius, De Jure Belli ac Pacis, bk I, ch. III, quoted in Tuck, 1979, p. 78)

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To make his case Tuck focuses on Hobbes’s early writings and particularly on the Elements of Law, and he is correct to point out that in this work Hobbes says that the right of self-defence must be given up to the sovereign for protection. He quotes Hobbes in the following passage where he says that the power of coercion of the sovereign, consisteth in the transferring of every man’s right of resistance against him to whom he hath transferred the power of coercion. It followeth therefore, that no man in the commonwealth whatsoever hath right to resist him, or them, on whom they have conferred this power coercive, or (as men used to call it) the sword of justice … (Hobbes, Elements of Law, II.I.7, quoted in Tuck, 1979, p. 121) What is less clear, however, in Tuck’s analysis, is why he lays such stress on this early formulation of Hobbes’s theory. After all, it is in his later, mature, version of the theory, particularly in Leviathan that Hobbes is so emphatic that the right of self-defence cannot be given up. It is manifest, that every Subject has Liberty in all those things, the right whereof cannot by Covenant be transferred. I have shown before in the 14. Chapter, that Covenants, not to defend a man’s own body are voyd. Therefore, If the Soveraign command a man (though justly condemned,) to kill, wound, or mayme himselfe; or not to resist those that assault him; or to abstain from the use of food, ayre, medecine, or any other thing, without which he cannot live; yet hath that man the Liberty to disobey. (Leviathan, pp. 268, 269) Hobbes (at least the mature Hobbes of Leviathan) differed from royalist writers before and during the civil war, on the crucial question of the rights to self-defence and self-preservation. For the royalists, no right of a subject could trump the rights of the king. For Hobbes, no political rights of a sovereign could trump the right of a subject to defend and preserve his life. And, as I have shown, preservation here means the right to what is required for a commodious life. The contrast between Hobbes and Grotius is striking.23 According to Hobbes, not only may we not enslave ourselves but we cannot give up or transfer any right unless doing so is to our benefit. And if someone

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seems to do so, then ‘he is not to be understood as if he meant it, or that it was his will; but that he was ignorant of how such words and actions were to be interpreted’ (Leviathan, p. 192). Under the squib ‘Not all Rights are alienable.’ He says that whenever someone transfers or renounces his right ‘it is either in consideration of some Right reciprocally transferred to himselfe; or for some other good he hopeth for thereby’. And it is worth quoting at length the following, to reiterate, … there be some Rights, which no man can be understood by any words, or other signes, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them that assault him by force, to take away his life; because he cannot be understood to ayme thereby, at any Good to himselfe. The same may be said of Wounds, and Chaynes, and Imprisonment; both because there is no benefit consequent to such patience; as there is to the patience of suffering another to be wounded, or imprisoned: as also because a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not. And lastly the motive, and end for which this renouncing, and transferring of Right is introduced, is nothing else but the security of a mans person, in his life, and in the means of so preserving life that, as not to be weary of it. (Leviathan, p. 192) What is of particular interest here is Hobbes’s conviction that it never could be to one’s advantage to give up or transfer one’s rights to selfdefence or self-preservation. There is nothing here of the patriarchal attitude that individuals are better off if they surrender themselves to the superior power of the sovereign. There is no remnant of divine right theory, according to which a sovereign receives all of the natural rights of his subjects in exchange for his protection. Despite all that Hobbes says about the strength and the undivided power of the sovereign, he keeps reminding us that from the point of view of the individual subject (and it is this point of view that he takes as the starting point of his political theory), it is always necessary to be able to defend oneself against attack and to have enough freedom to live a life that is worth living. He rails against Aristotle for defending slavery with the argument that some are more suited by nature for servitude; sneering, ‘as if Master and servant were not introduced by

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consent of men, but by difference of Wit: which is not only against reason but also against experience. For there are very few so foolish, that had not rather governe themselves, than be governed by others’ (Leviathan, p. 211). These remarks and others in the same vein demonstrate a wide gulf between Hobbes and Grotius on the significance and inalienability of the most important and fundamental rights. This is the point that is so underplayed by Tuck, who discusses it as merely a change in Hobbes’s thinking (Tuck, 1979, pp. 120–126) and is undeterred from arguing that Hobbes can be defined as a member (albeit a ‘deviant’ one) of the group of ‘conservative’ rights theorists, stemming from Grotius, who condoned slavery and absolutism. And it is the alienability of natural rights and particularly of the crucial right to self-defence that marks out a distinction between those theorists who see individual rights as disposable personal assets or possessions (as above) and those of the Lockean tradition (and also represented in notions of human rights prevalent today), who see individual rights as by definition attached to and inalienable from their human possessors. Indeed, it is their very inalienability that gives them their political significance. What political muscle do the rights to life or to basic civil liberties have if they can be alienated by those right-holders who are most in need of their protection? Hobbes stands out from the royalists on this point. Both the radical royalists and the moderate royalists were in agreement that all natural rights of individuals, including those of self-defence and self-preservation, are alienable and are given up to the king. Hobbes sent royalists like Clarendon and Bramhall into paroxysms of indignation by saying that some rights are retained, including the rights to self-defence and selfpreservation and even against the king (see Chapter 2). And as I have shown, the right to self-preservation is for Hobbes a very broad right indeed, encompassing far more than the bare right to self-defence it is usually taken to be. And this broad right to full preservation is, Hobbes argues, inalienable and carried into the commonwealth. These differences are sufficient to mark out the rights theories of Grotius and Hobbes as being quite distinct from one another. It is clear that the theory of natural rights was well established in the writing of the natural law theorists of the seventeenth century, but we should turn to the political writers of the American Revolution to see the culmination of this particular way of formulating individual

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rights. The Declaration of Independence in 1776 gives us a statement of a view of natural rights that raises the rights of individual citizens above those of the state. Grotius’s cautionary warning that although the rights of the individual are important they cannot of course override those of the state is swept away as rights are made the basis of the state. When in the Course of human events, it becomes necessary for one people to dissolve the political bands, which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organising its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. (From the Declaration of Independence 1776, quoted in d’Entrèves, 1951, pp. 61–62) In this passage we see the theory of natural rights, based on natural law, as the basis of both a justification of the state (the state should exist to protect the natural rights of individuals) and a justification of rebellion (if the state fails to protect the rights of individuals the citizens are justified in altering or abolishing it and instituting a new government). The Lockean view being expressed represents a clear example of a mature natural rights theory.

Hobbes’s place in the history of natural rights theories I can now return to the question; does Hobbes’s theory of rights fit into this tradition? Should he be included among those writers who developed the theory of natural rights from its beginnings in Roman

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law to its culmination in the Declaration of Independence of the American Revolution and the Déclaration des Droits de l’Homme et du Citoyen of the French Revolution? These are big questions and I cannot pretend to provide anything approaching an adequate answer. To provide such an answer would in itself require a whole book. I can only make a few tentative remarks but even that, I think, is enough to cast serious doubt on the notion that Hobbes’s theory of rights can be accurately characterised as a theory of natural rights in the tradition of natural rights theories connected to theories of natural law. First, Hobbes’s theory is no straightforward natural law theory. The exercise in the first part of this chapter demonstrates that the premises that standard natural law theories rely on cannot easily be attributed to Hobbes. And while there are strong arguments made about the lack of necessity for the theological premise, they cannot all be dismissed. A natural law theory without a theological premise, which also lacked the metaphysical and epistemological premises, would surely be no natural law theory at all. Second, does Hobbes’s theory contain the concepts regarded as ‘stepping stones’ from natural law to natural rights? Hobbes certainly employs a robust notion of equality in his theory. But there is no notion of natural or perfect justice overtly described anywhere in the theory. Indeed, in the state of nature, where Hobbes locates our original rights under the aggregate the right of nature, there is, on a straightforward reading of the text, no notion of justice at all.24 Third, a comparison of Hobbes and Grotius demonstrates that Hobbes moves beyond Grotius in the strength and political significance of the rights attributed to individuals. And Grotius remains bound to an Aristotelian notion of natural sociability and a typically natural law notion of natural justice in his justification of rights. This Sociability, … or this Care of maintaining Society in a Manner conformable to the Light of human Understanding, is the fountain of Right, properly so called; to which belongs the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage

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done through our own Default, and the Merit of Punishment among Men. (Grotius, De Jure Belli ac Pacis, Prolegomena, pp. 8–10, quoted in Tuck, 1979, p. 72) What could be further from Hobbes’s spare, materialist, mechanical descriptions of the nature of individuals and their ‘natural’ state of anarchic total freedom (the right of nature) restrained only by their own realisation that such anarchy is not the best way to peace and a commodious life? Hobbes certainly shares some of the terminology of natural law theorists, but he does not share with natural law/natural rights theories, a notion of laws that are to be found outside ourselves, either in the fabric of the universe or as the commands of a supernatural legislator and known to us innately by the ‘light of reason’. And in terms of metaphysics as I have said, he cannot have a commitment to essences or to anything ontologically extravagant. Is it possible then, that Hobbes can still be characterised as a natural law theorist? There are several Hobbes scholars currently writing, who would answer yes, or yes, kind of, or yes, to some extent. Mark Murphy, for example, argues that in what he terms Hobbes’s ‘deviant’ uses of the word obligation there are ‘remnants of the scholastic tradition of natural law theory from which Hobbes was trying to break free but which he found himself forced to rely upon’ (Murphy, 1994, p. 290). And this perhaps summarises nicely the limits of the case for Hobbes as a natural law theorist. There may be remnants of natural law thinking in Hobbes’s theory and it would be remarkable if there were not. But his political theory does not rely on natural law premises and that is enough to allow an argument that his theory of rights should not be characterised as a theory of natural rights, in the natural law tradition.

Why does it matter whether Hobbes is a natural law/ natural rights theorist? If Hobbes argues successfully for a notion of individual rights that strengthens the political position of the subjects in a Hobbesian commonwealth, without recourse to discredited theories of natural law and natural rights then we are left with the question, what sort of

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theory of rights does Hobbes hold? And the promise then is that once again Hobbes has demonstrated his originality and independence of thought. And he might even have something to say about the problem of rights that has been with us ever since that discrediting. This problem is how we should understand the notion of rights without the metaphysical or theological commitments of natural law theory.

Part IV Hobbes’s Theory of Rights – A Modern Secular Theory

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6 Current Discussions of Hobbesian Rights. The Distorting Lens of Hohfeld

Introduction If I am right that Hobbes’s theory of rights should not be categorised as a theory of natural rights then it remains to be seen what kind of theory of rights it is. I have established that Hobbes does describe some substantive political rights for subjects in his theory, as given to us in Leviathan, but I have yet to slot these Hobbesian rights into an appropriate theoretical context. I have been hinting that there are shortcomings to the Hohfeldian analysis, and the inadequacy of that approach now needs to be spelled out in order to clear the way for an attempt to see what theoretical underpinning there might be to a Hobbesian theory of rights. It should by now be clear that it has become commonplace in recent years to apply a Hohfeldian analysis of rights to Hobbes’s theory. I argue that this application of Hohfeld’s definitional analysis to Hobbes’s discussions of rights has contributed to a distorted reading of what he (Hobbes) has to say on the rights of individuals and their protection. Specifically, the application of the Hohfeldian liberty right to all Hobbesian rights has restricted what can be said about the ways in which Hobbes provides substantive rights for individuals that will be protected in a Hobbesian commonwealth. The Hohfeldian analysis has been so widely adopted that it has become part of the received wisdom on Hobbesian rights to the extent that commentators routinely refer to any and all Hobbesian rights for individuals as liberty rights without providing any argument or textual evidence to support the claim. The Hohfeldian liberty right then is 153

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now generally seen as the exemplar of a Hobbesian right (Cohen, 1998; Gauthier, 1969; Hampton, 1986; Kavka, 19861), and this has enabled commentators to argue that there are no genuine political or moral rights in the theory because there are no correlative duties attached to any Hobbesian rights. The Hohfeldian reading of Hobbes on rights as well as arguments about his moral theory and assumptions about absolutism has meant that, first, when Hobbes does clearly describe what we might call straightforwardly political rights for subjects or ‘claim rights’, in Hohfeldian language, his description is reinterpreted by commentators who argue that while he may seem to be describing genuine rights or claim rights, he could not possibly be doing so. Commentators’ hands are tied by the limitations of the Hohfeldian liberty right. Second, this also means that the importance of the right to self-preservation cannot be explained, because it does not conform to the definition of a Hohfeldian claim right. Its protection is provided not by directly correlated duties but by the duties of the office of sovereign. And so the received wisdom on Hobbesian rights continues; that they are all bare Hohfeldian liberties, that they are never correlated with the duties of others, that there are no rights held directly against the sovereign and therefore that there are no genuine political rights for subjects in the theory (Condren, 2000; Gauthier, 1969; Hampton, 1986; Ryan, 1996; Warrender, 1957). The Hohfeldian liberty right, defined as a liberty that is correlated with no duties on the part of others (Hohfeld, 1919, pp. 28–29),2 has been picked by many commentators as the obvious ‘match’ for the Hobbesian right of nature and, by extension, for all Hobbesian rights. How does this application of the Hohfeldian liberty right distort our understanding of the rights Hobbes describes? Perhaps the most striking example, as above, is the resulting failure to recognise the status of the rights that are protected when individuals conform to the second law of nature. As I have shown, these rights acquire correlative duties on the part of all other individuals. In Hohfeldian terms they are claim rights. And in current moral and political philosophy the Hohfeldian claim right is taken to be the exemplar of a moral or political right. It is, as it were, the right with moral and political muscle and the right that is almost universally accepted as lacking for individuals in Hobbes’s political theory. But the application of the Hohfeldian liberty right to all Hobbesian rights does more than blind us to the correlative duties attached to

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rights strengthened under the second law of nature. My argument is that the application of the Hohfeldian liberty right contributes to a misleading and inaccurate analysis of three sets of rights described in Hobbes’s theory. First, it brings about the misleading application of Hohfeld’s liberty right to Hobbes’s right of nature. Second, it causes the inability to recognise the claim rights held against other subjects that are created under the second law of nature. And third, when applied to the relationship between the subjects’ rights to self-preservation and the sovereign’s duties to protect the people and secure the peace, it leads to the failure to see how the right to self-preservation becomes (indirectly) protected by those duties.

Hobbes scholarship on rights I will use as my illustration of Hobbes scholarship (that uses a Hohfeldian approach) the analysis of rights in Hobbes’s theory given by Jean Hampton (1986). Hampton explicitly uses Hohfeld’s terminology and analysis of rights. Some other commentators, such as Gregory Kavka, do not refer directly to Hohfeld and use a slightly different terminology but the approach and analysis of rights is clearly Hohfeldian, and results in a similarly skewed reading, albeit with differences in the details of the argument. Other Hobbes scholars, writing more recently, have taken on the Hohfeldian analysis without directly arguing for it (Cohen, 1998; Finkelstein, 2001). These commentators (and most Hobbes scholars) are in agreement about their Hohfeldian conclusions. Hobbes describes liberty rights for individuals but not claim rights. An older tradition of Hobbes scholarship that continues in the work of some commentators reads Hobbesian rights as natural rights (Tuck, 1979). This is justifiable in the historical context of the dominance of theories of natural law and natural rights, when all discussion of the rights of individuals was conducted using the term ‘natural rights’. And Hobbes himself even slips into this language when he describes the right of nature, ‘as long as this naturall Right of every man to every thing endureth …’ (Leviathan, p. 190). To refer now to Hobbesian rights as natural rights, however, cannot really be justified and maintained without extensive argument to demonstrate that Hobbes holds a theory of natural law that would support one of natural rights (Warrender, 1957, 1969; Bobbio, 1993; Murphy, 1994; Lloyd, 20013).

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In cases where the use of the term ‘natural rights’ is not part of such an argument it is often used loosely to refer to the right of nature and other Hobbesian rights (Ewin, 1991) or sometimes interchangeably with the (less theoretically charged) simple ‘rights’ (Goldsmith, 1989). Within this context of Hobbes scholarship, Jean Hampton’s and others’ adoption of the Hohfeldian approach to analyse Hobbesian rights has moved the debate forward and more into line with current philosophical and jurisprudential discussions of rights theory. So, despite the fact that I want to argue against the Hohfeldian analysis, I think that Hampton and others have been right to replace the language and theoretical commitments of natural rights theory with that of contemporary discussion and analysis of the concept and theoretical foundations of ‘rights’ in order to try to get to the bottom of Hobbes’s puzzling and intriguing use of the term. The Hohfeldian analysis, while it has been useful in moving discussion away from assumptions about natural rights, has also failed to capture the theory of rights that underlies Hobbes’s writing.

The context At the centre of these modern commentators’ analysis of Hobbesian rights is a response to Hobbes’s apparently paradoxical use of the notion of individual rights to describe the anarchy and danger of the state of nature. Instead of saying either that in the state of nature individuals have certain rights (say to life, health, liberty and possessions that should not be ‘invaded’ as Locke was to say 40 years later [Locke, 1980, p. 9]) or that individuals have no rights (with a corresponding lack of duties not to invade), he says that they have rights to everything. By which he means, using his definition of a right as a liberty, that individuals are absolutely and justifiably free. In such a state he says, ‘every man has a right to every thing; even to one anothers body’ (Leviathan, p. 190). Hobbes is describing a state of absolute individual freedom; a state that lacks any restrictions, legal, moral4 or political, on what an individual may or may not do to preserve herself. And, as he says, there is nothing one can make use of ‘that may not be a help unto him of preserving his life against his enemyes’ (Leviathan, pp. 189–190). The implication is that nothing is barred and although there is an argument that the stipulation of preservation as the motivating factor means that actions done, say,

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from spite might not be justified; in my view this does not necessarily provide a check on the ‘right to any thing’ that Hobbes is describing. In a state ruled by fear and danger any actions could be construed as necessary for the goal of self-preservation, even if they are also motivated by other desires or goals. It is this particular use of the language of rights, the language of freedom rather than that of entitlement, combined with his definition of a right as the ‘liberty to do, or to forbeare’ (Leviathan, p. 189) that has contributed to the application of the Hohfeldian category of a liberty right or privilege to capture what Hobbes must mean when he refers to the rights of individuals. And Hobbes’s notion of the right of nature, as an aggregate right comprising a complete and unrestricted set of liberties, could not be further from the modern political understanding of individual rights. We are accustomed to thinking of rights as entitlements to protection for individuals against the invasions or lack of help of others, particularly of states; entitlements that are protected by the restrictions or duties of others in order to ensure the right-holder’s safety and well-being. We think of rights, in other words, as claims. The right to bodily integrity, for example, is seen as an entitlement to the protection of one’s own body against any non-consensual assault or invasion. The right is held against all other persons and the state, each of whom have duties not to invade my body. Discussions of rights in political philosophy, at least since Locke, have often made what are now referred to, in Hohfeldian terminology, as ‘claim rights’ (that is, rights that are correlated with the duty or duties on the part of another or others to refrain from interfering with the person’s exercise of their right, or to assist the person in its exercise, or, in some cases, to provide what is required according to the right) the accepted definition of a political right.5 So, the notion of a right that is correlated with the duties of others, particularly when the correlated duties are held by the state, has been accepted as the defining notion of a political right, long before Hohfeld named it a claim and defined it as one individual concept denoted by the term ‘right’ along with the three others that he picked out in the legal literature. This goes some way to explaining why Hobbes scholars and other political philosophers have been so quick to dismiss Hobbesian rights as lacking in substance. Once the Hohfeldian liberty right rather than the claim right was said to

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describe Hobbesian rights, the argument was already over; Hobbesian rights must not really be political rights at all, but rather just bare Hohfeldian liberties, which can deliver nothing to subjects in the way of protection of the right or in the sense of reigning in the Sovereign’s power. And when commentators look at Hobbes’s right of nature, the argument is at its most stark. According to this aggregate right, after all, individuals have an unlimited set of liberties which impose no restrictions or duties on anyone (as above). The Hohfeldian liberty right is therefore seen by Hobbes commentators as a right that is unprotected in every sense, and therefore not really a (political) right at all.

Liberty rights in the context of jurisprudence Jurisprudes are accustomed to discussing Hohfeldian liberty rights in the context of laws, which sometimes protect liberties rather than claims. My liberty right to walk on land that I own, for example, gives me the freedom to walk or not on the land as and when I choose, and is combined with various claim rights and immunities and powers that make up my aggregate property right. Liberty rights, in this context, are not so contrary to the accepted notion of moral and political rights, at least when they are in the context of other claim rights or immunities that provide protections to right-holders and impose duties on others in order to guarantee those protections. The liberty rights in these cases are protected. I am free to walk on my own land and that freedom is guaranteed or protected by all the other rights and duties that make up my aggregate property right. Similarly, my liberty right to walk on the common, for example, imposes no duties on others not to walk or to clear me a path or not to let their dogs or children block my way. My liberty right is combined with the liberty right of all others also to walk there and in that sense puts me in open competition with them – a free-for-all to see who gets the path at point P1. But, this liberty right is also combined with other claim rights which do provide protection during my walk; for example, my claim right not to be assaulted, which will protect me from being shoved or stabbed as I go on my way (Kramer, 1998, p. 11). In this jurisprudential context, liberty rights are particular freedoms that we may exercise in the safety of the accompanying

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claim rights and the crucial protections of laws that prevent or punish actions that violate such claim rights. In Hobbes scholarship, however, this jurisprudential context of the liberty right is often forgotten and is replaced, for example, by Hampton, with a notion of a liberty right as a bare liberty without any accompanying claim rights to protect it. It is easiest to understand this notion of a liberty right, taken out of its legal context, when we look at the right of nature. What we have with Hobbes’s right of nature is something quite different to Hohfeld’s discussion of liberty rights in the context of complex sets of legal rights and duties, such as those accompanying the ownership of property, as above. Hobbes describes a complete set of liberties, in a state without even moral claim rights, to provide any (moral) restrictions on the actions of individuals, let alone laws to protect such rights. And so, individuals in the state of nature have an overblown, unlimited freedom which includes the freedom to invade others. Again, because the liberties/rights are not surrounded by claim rights which do impose duties on others (or by immunities or powers), there is freedom, not just without protection but also without restriction. So, my freedom to walk on the common, in a state of nature, would extend to my freedom to attack anyone in my path and stop them by any means I consider necessary for my preservation. This freedom, when everyone else has it too, implies such accompanying danger that it is a freedom not worth having. And it is the resulting notion of rights, as describing utterly unprotected freedoms, that chimes so well with commentators’ vision of the Hobbesian right of nature, but that fails to take into account the jurisprudential context for Hohfeld’s liberty right.6 It is of course, precisely this aspect of such freedom that Hobbes is convinced is so detrimental to our safety that we will realise we must give some of it up. ‘… [A]s long as this naturall Right of every man to every thing endureth, there can be no security to any man, (how strong or wise soever he be) of living out the time, which Nature ordinarily alloweth men to live. And consequently it is a precept, or generall rule of Reason, That every man, ought to endeavour Peace, as farre as he has hope of attaining it; …’ and this leads us to the first law of nature which is, ‘to seek peace and follow it’. And from there, to the second law of nature, according to which we must ‘lay down this right

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to all things; and be contented with so much liberty against other men, as he would allow other men against himselfe’ (Leviathan, p. 190). But I am getting ahead of myself. The logic of Hobbes’s argument that it would be rational to bring about a safer environment than that of the state of nature is well rehearsed. What is of relevance here is how he weaves his theory of rights into the argument. If rights are freedoms (‘RIGHT, consisteth in liberty to do or to forebeare’, Leviathan, p. 189) and start out as complete and unlimited freedoms held by each against each, then they must change if they are to become protected. And they must be protected if they are to be successfully exercised. Individuals must give up their complete freedom against each other and accept only as much freedom against others as they would want others to hold against them. And so Hobbes sets down, this second Law; That a man be willing, when others are so too, as farre-forth, as for Peace, and defence of himselfe he shall think it necessary, 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 himselfe. (Leviathan, p. 190) And they must also take on duties towards each other in order to protect the remaining freedoms. Hobbes describes the duties we take on when we give up those liberties (rights) that we would not want others to hold against us. And when a man hath in either manner abandoned or given 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 that he Ought, and it is his DUTY, not to make voyd that voluntary act of his own. (Leviathan, p. 191) This is, at least in part, what Hobbes tells us about rights and their protection. What I particularly want to get at is the way in which the move by commentators to define the Hobbesian right of nature and all Hobbesian rights for individuals as Hohfeldian liberty rights has lead them to distort what Hobbes goes on to say about rights and their protection, as people agree to enter civil society.

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One of the characteristics of the Hohfeldian approach to rights is an acceptance of a logical division between different notions of right. Rights are: privileges (liberties), claims, immunities or powers. Following the legal usage, Hohfeld argues that all rights can be broken down into one or more of these simple categories of right and at bottom all rights are atomic and describe a (legal) relationship between two people (Hohfeld, 1919; Simmonds, 2002). It follows from this account that there are no naturally complex rights and no movement between categories, although there are many examples where the different kinds of right exist closely together, in situations which combine several different sorts of legal relations. Hohfeld gives the following example: ‘The eating of a shrimp salad is an interest of mine, and if I can pay for it, the law will protect that interest, and it is therefore a right of mine to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic.’ And he defines the rights involved in the following way, [t]his passage seems to suggest primarily two classes of relations: first, the party’s respective privileges, as against A, B, C, D and others in relation to eating the salad, or, correlatively, the respective ‘no-rights’ of A, B, C, D and others that the party should not eat the salad; second, the party’s respective rights (or claims) as against A, B, C, D and others that they should not interfere with the physical act of eating the salad, or, correlatively, the respective duties of A, B, C, D and others that they should not interfere. (Hohfeld, 1919, p. 41) And he adds, ‘these two groups of relations seem perfectly distinct; and the privileges could, in a given case, exist even though the rights mentioned did not’ (ibid.). Each actual (Hohfeldian) right is, according to Hohfeld, the type of right it is and only that type. If it is not a claim right then it must be a liberty, a power or an immunity. And if it is a liberty right then it cannot be transformed into a claim right. As he says, when describing the distinction between privileges (liberty rights) and claim rights, … the importance of keeping the conception of a right (or claim) and the conception of a privilege quite distinct from each other

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seems evident; and, more than that, it is equally clear that there should be a separate term to represent the latter relation. No doubt, as already indicated, it is very common to use the term ‘right’ indiscriminately, even when the relation designated is really that of privilege; and only too often this identity of terms has involved … a confusion or blurring of ideas. (Ibid., p. 39) I am labouring the point for a reason. I argue that these characteristics of the Hohfeldian analysis have led commentators who are analysing Hobbesian political rights to fail to see how, for example, a right defined as a freedom or liberty (loosely, not a strict Hohfeldian liberty) under the right of nature can later become protected by the duties of others, taken on under the second law of nature, to stand out of the way of the right-holder’s exercise of that right. The strict separation between the different types of rights of the Hohfeldian system is one of the reasons why commentators, once they decide that Hobbesian rights are liberty rights, can then conclude that there are no claim rights for subjects and not even a possibility of claim rights in his theory. There is another reason why the application of the Hohfeldian category of ‘liberty right’ to Hobbes’s right of nature has led commentators to see all Hobbesian rights as liberty rights. Once the Hohfeldian ‘liberty right’ is seen to fit the definition of the right of nature then it does not take much to make an argument that this liberty right also fits with the assumption that the Hobbesian sovereign is absolute7 and therefore that subjects cannot hold rights against him/them. Because, it is argued, such rights would be claim rights. And, the argument goes, it has already been shown, that Hobbesian rights are not claim rights – they are liberty rights. If a Hobbesian sovereign is absolute, then individuals in a Hobbesian commonwealth cannot hold genuine claim rights against such absolute power and authority. Indeed, the holding of such rights is seen to imply a limit on the sovereign power, as it famously does in Locke’s political theory. And so a rather neat, if distorted, picture emerges. If the Hobbesian sovereign is absolute how can subjects hold claim rights against him/them? They cannot, say the commentators, and they do not because Hobbesian subjects have no claim rights, they only have liberty rights.

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Hampton’s Hohfeldian analysis of Hobbesian rights Jean Hampton starts her discussion of rights in Hobbes’s theory with a wholesale adoption of the Hohfeldian analysis of legal rights (Hampton, 1986, p. 51). She lists the four meanings of the term ‘right’ given by Hohfeld with the first and second being, respectively, a claim and a privilege or liberty and states that ‘[f]or our purposes the first two meanings of the word are important’ (ibid.). She also says, [t]he notion of a right as a claim is perhaps the most common and natural concept that the word ‘right’ has been taken to cover. It is the idea that a person has a ‘moral claim’ to some thing or some act or some kind of treatment, and it is correlated with a duty that others have to respect or (provide) that thing, that act, or that treatment to which one has a claim. (ibid.) It is worth pointing out that of course Hohfeld was not talking about moral claims or duties but legal ones and despite the trend to see his analysis as equally applicable to moral and political rights,8 I think that there may be problems with this approach and I will say more about this below, but for now it is important to note that Hampton is treating Hohfeld’s category of a claim right as a moral right. Hampton states exactly how she thinks the Hohfeldian categories of rights can be applied to illuminate what Hobbes means by a right: It is easy to mistakenly assume that Hobbes uses the word ‘right’ in this sense [as a claim right]. But he does not; in fact, his use of the word shows that he endorses the second conception of ‘right’ outlined by Hohfeld – the idea that a right is a privilege or a liberty. ‘Right,’ in this sense, is the opposite of a duty. If I have a liberty to use land in a certain way, I may do so or not, as I desire; in no way am I morally required to do so. Moreover, ‘right’ in this sense is correlated with what Hohfeld calls (for lack of a better term) a ‘no-right’. If I have the privilege or liberty of boating on Lake Mead, other people have a ‘no-right’ (i.e. no basis of claim – the ‘right’ in the term is being used in the first sense) that I shall or shall not go boating on Lake Mead. They cannot demand that

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I do, and they cannot demand that I do not. They can demand nothing in this regard; hence the term ‘no-right.’ (Hampton, 1986, pp. 51–52) For Hampton it is this lack of moral obligation or duty to exercise the right that makes the liberty right particularly appropriate for her interpretation of Hobbes. So, as well as arguing that claim rights are moral rights she also argues that liberty rights are non-moral. What Hampton overlooks is that this lack of obligation to exercise a right applies to all rights, and is indeed, an important feature of the notion of a right. It applies to claim rights as much as to liberty rights. I have no obligation to exercise my claim right to free speech, for example. I am not obliged to exercise it (or not), rather, I have a right to exercise it; which means I may or may not. So, Hampton’s first argument for a liberty right being a non-moral right fails. A liberty right is no less moral, in this sense, than a claim right. Her second argument is that liberty rights are non-moral because they imply no correlative duties for others. This argument is accurate in its use of Hohfeldian terms; a liberty right entails no obligations for others, whereas a claim right does entail obligations for others. In the sense that it does not entail directly correlated obligations of others then, a liberty right could, perhaps, be said to be non-moral, when contrasted with a claim right. But this does not rule out all of the ways in which a liberty right might be a moral right (as well as a legal right). It might be a morally justified freedom or it might, as Gregory Kavka argues, be a freedom from normative restrictions, what he calls a ‘permission right’.9 Hampton also misses the important aspect of liberty rights, as described by Hohfeld, that I have outlined above; that liberty rights, in the legal context, are surrounded by claim rights (and immunities and powers) so that they do not exist in the sort of non-moral universe that, according to Hampton’s argument, is the context for Hobbes’s liberty rights (and for his entire political theory). This is an important point and provides an argument against the categorisation of the Hobbesian right of nature as a liberty right. Hohfeldian liberties do not describe freedoms in a context where there are no restrictions on people’s actions. Indeed, by definition, as Hohfeld is defining legal rights, they cannot exist outside a system of law that

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restricts people’s actions. It is arguably inappropriate, therefore, to apply the Hohfeldian liberty right to Hobbes’s right of nature.

The failure to recognise the protected rights (‘claim rights’) that result from conforming to the second law of nature As I have already argued, it is my view that when Hobbes discusses the second law of nature he describes how some rights come to be protected by the duties of others. To reiterate, the second law of nature states: That a man be willing, when others are so too, as farre-forth, as for Peace, and defence of himselfe he shall think it necessary, 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 himselfe. (Leviathan, p. 190) Hobbes is arguing that if we want to live in peace we cannot continue to be free to do anything to anyone, and we must therefore give up what I call our invasive rights – the rights we would not want others to hold against us. When he describes how we are to do this he says: ‘To lay downe a mans Right to any thing, is to devest himself of the Liberty, of hindring another of the benefit of his own Right to the same.’ And: Right is layd aside, either by simply Renouncing it; or by Transferring it to another. By Simply RENOUNCING; when he cares not to whom the benefit thereof redoundeth. By TRANSFERRING; when he intendeth the benefit thereof to some certain person, or persons. And 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 that he Ought, and it is his DUTY, not to make voyd that voluntary act of his own: and that such hindrance is INJUSTICE, and INJURY … (Leviathan, p. 191) So, if I transfer my right to your body to you, then I no longer have the right to hinder you from exercising your right to your body. And,

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once I transfer the right, then I am obliged not to hinder you from the benefit of having and exercising that right. It is now my duty not to interfere with your exercise of your right to your body. Now, you have a right to your body (which you already had) and I have a duty not to interfere with your exercise of your right to your body.10 This statement describes what Hohfeld calls a claim. It is a right that is correlated with someone else’s duty (Hohfeld, 1919). I argue that the passages above describe the change from unprotected rights to protected rights and that in Hohfeldian terminology this could be characterised as a change from liberty rights to claim rights. Hampton says, ‘[i]s Hobbes saying in this passage that after renouncing a liberty-right, we have a duty to others, correlated with a claim-right that they have over us, to the effect that we do not try to exercise the liberty we have renounced? It certainly sounds like it’ (1986, p. 55). But she then goes on to argue that Hobbes cannot really be describing claim rights. Hampton uses two arguments to try to demonstrate that what Hobbes has described sound like claim rights but cannot be claim rights. First, she has an argument drawn from her analysis of Hobbes’s moral theory. I will call this the meta-ethical argument. Second, she has a textual argument based on Hobbes’s reply to the fool. In the former she argues that there can be no ‘objectivist’ notion of obligation in Hobbes’s theory, and in the latter, she argues that, according to Hobbes, all contracts can be reneged on wherever it is in someone’s interests to do so (Hampton, 1986, p. 56). Both of these arguments have already been discussed.11 On Hampton’s view Hobbes’s subjectivism means that he cannot accept the notion of a claim right because (she argues) claim rights assume the notion of moral obligation, which is an objectivist, deontological notion that has no place in an ethical theory based on subjectivist principles. So, she argues that the possibility that Hobbes might include claim rights for individuals in his theory is precluded by his moral theory. This leaves her with the problem of explaining how a passage that explicitly describes rights with correlative duties does not actually describe claim rights. As I have already argued, we are still left with this puzzle despite her attempt to define her way out of it. And even if I were to grant Hampton her assumption that Hobbes’s moral theory is subjectivist and her argument that a subjectivist moral theory cannot support a notion of moral obligation, I could

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still simply say that all this proves is that there is an inconsistency in Hobbes’s argument. On the one hand he holds a subjectivist moral theory and on the other he describes rights with correlative duties. The argument that a subjectivist moral theory cannot support a notion of moral obligation does not make Hobbes’s description of rights with correlative duties go away. It is surely no accident on Hobbes’s part that in order to secure ourselves and to be able to live in peace, he says that we must not only give up some of our liberties but as we do so we must also undertake not to interfere with those rights that individuals may hold onto, once they have each transferred or given up their invasive rights. Indeed, it is this crucial move, the allocation of correlative duties to the remaining allowable rights we have, that starts the process of providing protection for those rights which were so disastrously unprotected under the right of nature. Hampton, in then attempting to substantiate her claim that Hobbes’s subjectivist moral theory precludes the possibility that he has described claim rights, is forced to give a wholly unconvincing argument. This is the second textual argument concerning Hobbes’s reply to the fool in which, according to Hampton, Hobbes does not appeal to a ‘normative obligation’ but appeals instead to self-interest. Her argument is that Hobbes tells us that we only have a duty to keep a contract as long as it is in our (presumably immediate) self-interest to do so. ‘So, for Hobbes, self-interest explains not only why we should do what we ought but also when our obligations arising from the surrender of right in a contract cease’ (Hampton, 1986, p. 56). But again, even if I were to grant Hampton her argument that Hobbes says that we can renege on our agreements when it is in our interests to do so,12 I can still reply that when Hobbes describes the transfer of rights under the second law of nature, he also describes the taking on of duties that are correlated with the right-holder’s right. And this conforms to Hohfeld’s definition of a claim right. In other words, even if we might conclude that the duties that are correlative to the rights will not amount to much, they are still duties and, it could be said, as good as any other duties Hobbes describes. So, while there might be disagreement about what sort of duties they are, or what limitations they may have, they are nevertheless duties, as Hobbes confirms by his use of the terms ‘bound’, ‘obliged’ and ‘ought’ to explain their implications. My argument is that one of the elements that contributes to Hampton’s failure to recognise the protected rights

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that Hobbes describes is her Hohfeldian conviction that Hobbesian rights are (and must be) only liberty rights and therefore, by definition, not claim rights. The deeper questions about the moral theory remain, of course, and I will not go into those here. It can now be seen that for Hampton it is a combination of her arguments that 1. All Hobbesian rights are Hohfeldian liberty rights, and 2. Hobbes’s moral theory precludes claim rights because in her view a subjectivist moral theory cannot support a notion of moral obligation that led her to go to great lengths to try to demonstrate that Hobbes does not really describe rights correlated with the duties of others under the second law of nature. If she had not been tied into those arguments then perhaps she could have allowed that Hobbes clearly describes rights that become protected by the duties of others when invasive rights are transferred under the second law of nature.

The failure to see that the right to self-preservation is indirectly protected by the sovereign’s duties The third way in which Hampton’s Hohfeldian analysis of Hobbesian rights fails to account for the theory of rights Hobbes actually proposes is in its interpretation of the right to self-preservation. This right is, after all, the cornerstone of Hobbes’s political theory. Our desire to preserve ourselves and our hope for a commodious life motivates our move into civil society and our right to fully preserve ourselves is a right that we can never give up – it is inalienable (Leviathan, pp. 192, 199, 212). So, the right to self-preservation is carried into the commonwealth, never given up, even to the sovereign and, I argue, it becomes (indirectly) protected by the sovereign’s duties to protect the subjects, guarantee the peace and provide the conditions for a commodious life. What I want to highlight is the way in which, once again, the Hohfeldian approach, adopted by Hampton, limits what can be said about the right to self-preservation. This right (which she initially refers to as the right to self-defence) is interpreted, as all Hobbesian rights are by Hampton, as a Hohfeldian liberty right. As a Hohfeldian

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liberty right it implies no directly correlated duties and as a right with no directly correlated duties it fails, on her reading, to qualify as a moral or political right, and it fails to provide any protection for subjects. For Hampton, if the right were to be protected it would have to be a claim right and, as I have shown above, Hampton argues that there are no claim rights for subjects in Hobbes’s theory. And so, on Hampton’s reading the right to self-preservation is not a moral or political right because it is not a claim right. Hampton’s reading of Hobbes is historically perceptive however; so although her reading of his rights theory is, in my view, limited by her Hohfeldian approach (as well as by her assumptions about moral subjectivism), she does, at the same time, see the extent of the right to self-preservation, which has often been missed by Hobbes commentators, … what upset the conservative’s [in Hobbes’s time] … was that Hobbes did not limit the scope of the self-defense right to mere bodily survival. In Chapter 21, on the liberties of the subjects, Hobbes uses a very broad notion of this right, that is, that one can rightfully resist or defend oneself against anything that might lead not only to death but also to mere injury of one’s body, as a foundation for a number of subject liberties that would seriously undermine the supposedly limitless and absolute power of the sovereign. (Hampton, 1986, p. 200) She goes on exploring the extent of the right, noting that it extends even to the right to protect one’s reputation. She cites the following passage from Leviathan: No man is bound … either to kill himselfe, or any other man; and consequently … the Obligation a man may sometimes have, upon the command of the Soveraign to execute any dangerous, or dishonourable Office, dependeth not on the Words of our Submission; but on the Intention; which is to be understood by the End thereof. (Hobbes, Leviathan, cited in Hampton, 1986, p. 200, emphasis added by Hampton) And she comments ‘What? Is Hobbes saying that people have a right to lie to their sovereign, that they can refuse not only to kill other

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men but also to commit those actions that are dangerous or dishonourable?’ (ibid.), and concludes: ‘The self-defense right has now been interpreted so broadly that it is essentially equivalent to the entire right to preserve oneself’ (Hampton. 1986, p. 201). She points to Hobbes’s justification of the state in terms of the individual’s desire to preserve herself, to explain why he has to make this right so extensive. People will only enter the commonwealth if they know that it is rational to do so in terms of their self-preservation. Hampton takes this to imply that with this right Hobbes ‘… makes the subjects the judges of whether or not they will obey any of the sovereign’s laws’ (ibid.). Not only is this a radical conclusion, but for Hampton it means that Hobbes’s entire argument for absolute sovereignty fails. She points to the following passage to make the case, adding her own aside. ‘The Obligation of subjects to the Soveraign, is understood to last as long, and no longer, than [sic] the power lasteth, by which he is able to protect them … The end of Obedience is Protection’ (Hampton, 1986, citing Leviathan, p. 272). She notes that an absolute ruler ‘should have the final say over what his subjects should and should not do’ but that Hobbes seems to be saying that ‘an absolute sovereign reigns at his subjects’ pleasure, for it is they who will decide whether or not obedience will secure them protection!’ (ibid., p. 202). Despite this interpretation of the effect of the right to selfpreservation on the sovereign’s supposed absolutism, Hampton’s Hohfeldian analysis prevents her from concluding that this has any significance for Hobbes’s theory of rights. Hampton frames her conclusions about the right to self-preservation in terms of her analysis of Hobbes’s argument for absolute sovereignty. But if we look at its implications for the right to selfpreservation, that right no longer looks like a bare Hohfeldian liberty, rather it has real purchase; it limits the sovereign’s authority by giving the subjects licence to disobey the sovereign and by making the sovereign’s right to rule dependent upon his success in improving the subjects’ abilities to preserve themselves, that is, to exercise their right to self-preservation. But Hampton does not recognise the strength of the right, as a right, because it does not conform to the definition of a Hohfeldian claim right. It is not directly correlated with the sovereign’s duties, which Hobbes famously insists are not owed to subjects. (Leviathan, Ch. 18). Yet, as I argue, the sovereign does have duties and these include ‘the procuration of the safety

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of the people; to which he is obliged by the law of nature’ (Leviathan, p. 376). If these duties allow subjects sufficient protection to exercise their right to preserve themselves more effectively then, I argue, the duties do protect that right, albeit indirectly.

Another way to analyse Hobbesian rights 1. Liberties protected by the duties of other individuals I have been arguing that the Hohfeldian analysis distorts our reading of what Hobbes actually says about the rights of individuals in a Hobbesian commonwealth. So, how then should we read his theory of rights? If we suspend use of the Hohfeldian scheme of four types of rights and their correlatives, how might we analyse the rights being described? Let us suppose that the rights held in the state of nature are just unprotected liberties but that nothing follows from this in terms of their nature or future. In other words, let us suppose that just because they are bare liberties in the state of nature it does not mean that those same liberties cannot become protected as circumstances change. Under the second law of nature, for example, when individuals transfer their invasive rights over to each other and take on duties to not interfere with the recipients transferred rights, the recipients’ rights, which were unprotected liberties before the transfers, have now become correlated with duties of others (the transferers). So, they now conform to the definition of Hohfeldian claim rights. But, having suspended the Hohfeldian analysis, I shall call them protected rights. That way, I can say they are the same rights that were simple unprotected liberties in the state of nature and have now become protected liberties by the addition of correlative duties of non-interference. The Hohfeldian might reply, yes, but they are no longer just freedoms they are now claims; claims to the duties of others. To which I can say, they are still freedoms; but they are now greater freedoms or truer freedoms (freedoms with fewer impediments) because of the newly acquired duties of all other individuals not to interfere with their exercise. And yes, they now also involve a claim to other people’s duties. But this claim does not mean that they are no longer liberties. Take my right to my property. If I use the example of the apples on the tree in my garden, then in the state of nature I am at liberty13 to

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take the apples but so are you (and everyone else). So I am free to try to take the apples (to exercise my right to them) but in reality that freedom will be potentially impeded on all sides by everyone else who has a ‘right to the same’ (‘… that right of all men to all things, is in effect no better than if no man had right to any thing. For there is little use and benefit of the right a man hath, when another as strong, or stronger than himself, hath right to the same [Elements of Law, 1994, p. 80]). Once you (and all other individuals) have transferred your rights to my apples over to me (when we conform to the second law of nature), then there is a ‘diminution of impediments to the use of [my] own Right originall’ (Leviathan, p. 191). And so, I have a greater freedom to the apples on the tree, or a freedom that is less impeded, or a freedom that is easier to exercise because of its correlation with everyone else’s duty to stand out of my way and not interfere, when I take the apples from the tree. Do I now also have a claim? Yes, in the sense that I have a claim to your duty, to your standing out of my way. So, my right to the apples on the tree has become more complex than the simple liberty it was in the state of nature. My lack of external impediments (to the apples on the tree), my freedom to get those apples, is now connected to the duties that will lessen the impediments and so I will be better able to get the apples. So, my right to the apples now consists in my original right, which was a simple liberty, in addition to the correlative duties to stand out of my way, that have been added to it and the increase in liberty or in the ease of its exercise that results from those duties being performed. This seems to be the way that Hobbes would understand the right to the apples. And this is what cannot be described in Hohfeldian terms because according to a Hohfeldian analysis it involves one type of right changing to another type of right. This, in turn, would mean that a new right (a claim right) is created and Hobbes states that no new right is received. He seems to see the right as being the same but with a diminution of impediments to its use (ibid.). This can be described as a liberty that has become easier to exercise or that becomes expanded by the diminution of impediments to its use. And so, rather than one kind of right being transformed into another kind of right, the right remains at its core the same liberty but it is changed in the sense of expanded or strengthened by the uptake of duties by others to stand out of the right-holder’s way when she tries

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to exercise the right. A more simple way of putting this is to say that the unprotected liberty of the state of nature has become a protected liberty once we conform to the second law of nature. The right starts out as an unprotected liberty and as such is of little benefit to the right-holder. But it comes to have increased benefit once it is protected by the duties of others. And it will become even more securely protected once a sovereign has been instituted who will encode and enforce the second law of nature.14 The Hohfeldian might argue that all that has happened is that claim rights have been added to the liberty rights of the right of nature. But again, this does not fit with Hobbes’s remark that in the process of the transferring of rights, no one receives a right she did not already have, because in the state of nature everyone has a right to everything (Leviathan, p. 191). This makes clear that for Hobbes all rights are liberties and in the state of nature all individuals have the complete set of liberties. So, for Hobbes there cannot be the addition of any new rights. All rights are already attached to each individual. Nor can there be any rights that are something other than liberties. There is elegance to this scheme: where rights are all liberties and each individual starts out with a complete set of simple liberties some of which can then be transferred and added to, to make up more complex rights. And those freedoms that are essential for life itself and for a commodious life cannot be given up but are inalienable. And the rights that must be given up turn out to be those rights that will hurt others. On a Hohfeldian analysis we would have to say that the liberty rights of the state of nature have had claim rights added to them. But any individual right cannot be both a Hohfeldian liberty and a claim; on the Hohfeldian analysis, that would be contradictory. It must be either a liberty or a claim. Those rights that are transferred then, would, once the correlative duties have been taken on, become claim rights and cease to be liberty rights. As Hohfeld says (above), ‘the importance of keeping the conception of a right (or claim) and the conception of privilege [liberty] quite distinct from each other seems evident’. But part of the problem is the way that Hohfeld has defined a liberty as being a freedom without correlated duties. His definition then precludes talking of freedoms being protected by duties – such things would then not be liberties but rather claims.

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So, on the Hohfeldian analysis, we would be forced to understand Hobbes as describing liberty rights in the state of nature (and it is worth noting, most commentators stop at this point saying that Hobbes describes only liberty rights) and then introducing some claim rights, under the second law of nature, where there are correlative duties. It seems, however, that Hobbes wants to speak of these rights as being the same rights that were held in the state of nature as bare liberties with the difference that some of them have now acquired correlative duties of non-interference. This process cannot be accounted for on a Hohfeldian analysis. A liberty right, say, to my body, held as a bare liberty in the state of nature, cannot then become protected by the newly acquired duty of all others (once they transfer their rights to my body over to me) to now not interfere with my right to my body. If this process were to take place the Hohfeldian would have to say that I no longer have a liberty right to my body. I now have (instead of a liberty right to it) a claim right to it. And yet Hobbes clearly sees the rights as being the same rights. 2. Liberties protected indirectly by the duties of the sovereign qua sovereign The Hohfeldian analysis does no better when it comes to describing what happens to the right to full preservation when we institute a sovereign. Then we have a liberty to do what we must to preserve ourselves that becomes indirectly protected by the sovereign’s duties, and these duties are not duties to the subjects but duties of the office of sovereign. There is no mutual transferring of right here. The sovereign is not going to transfer or give up any rights because in Hobbes’s view he would cease to be sovereign if he did so.15 But he will take on duties to protect the subjects and achieve peace and provide the freedoms necessary for the subjects to be able to pursue a commodious life. The sovereign must perform these duties in order to maintain the right to rule. The performance of the duties by the sovereign will transform the simple liberties (held under the aggregate right to self-preservation), to preserve ourselves in the state of nature, into protected liberties in a commonwealth. On the Hohfeldian analysis, if rights are protected by duties then they are claim rights and the duties must be directly correlated to the right; that is, after all, what a claim right is. But why cannot a right be protected by duties that are not directly correlated with the right?

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Again, the Hohfeldian scheme cannot allow for this way of providing protection for rights. If my neighbour sets up a market in the street in such a way that I am unable to get past it with my cart/horse/car, and I need to do so in order to fetch food, then my retained right to preserve myself is unprotected and the impediments too great for the right to be of any use to me. My neighbour also needs to set up the market to make her living and, as neither of us has had to transfer these non-invasive rights, she has no duty to me to clear my way. The rights we retain are the simple liberties of the right of nature and as long as we are in the state of nature they leave us theoretically free but without protections or duties and in competition with one another. Even after we agree to conform to the second law of nature, we will still have no protection for these rights, although we will have agreed to give up the invasive rights to assault each other, etc. Once the sovereign is instituted, however, we do gain some protection, albeit indirectly, because the sovereign does not owe me or my neighbour directly correlated duties. The sovereign, however, has a duty to protect our rights to preserve ourselves and make a living, fetch food, etc. and so the sovereign’s duty is to make the appropriate arrangements, laws, etc. that will allow my neighbour to set up her market and me to pass by. It is the sovereign’s performance of that duty that in this case provides protection for our rights and reduces the impediments to my freedom of movement.

Conclusion What I have tried to demonstrate is that the effects of a pervasive (mis)application of the Hohfeldian liberty right to Hobbesian rights has had a detrimental effect on the analysis of Hobbesian rights and on our understanding of his argument that we should enter civil society (at least in part) in order to gain protection for those rights that we need not give up. This raises the question of whether, in analysing moral and political rights, as described in the theories of writers such as Hobbes, the analytical scheme given by Hohfeld might be too restrictive in that it cannot allow for rights being defined in different ways. As the notion of a subjective right emerged and developed in medieval and early modern philosophy, it went through various stages as it moved away from the notions of objective right (ius) and dominion

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(dominium) (Tuck, 1979). It is hard to see how these changes could be described and understood if they could only be discussed within the limits of a Hohfeldian definitional analysis. And while Hohfeld’s legal analysis is certainly a brilliant piece of analytical jurisprudence that provides a framework for discussions of the different legal relationships involved in the application of ‘right’ as a legal term; its very sharpness as a legal analytical tool can make it inappropriate for some political and historical discussions of rights. Those discussions need to be able to tease out and examine the various ways in which the notion of individual rights has been used in political theory. And if, for example, Hobbes defines rights as liberties, which start out in the state of nature as unprotected liberties but some of which become protected liberties by the uptake of various duties, then we need to be able to discuss the way in which Hobbes does this, without being hamstrung by definitions that do not allow for rights as he describes them. Supporters of the application of Hohfeld’s analysis to political theory, such as Mathew Kramer, will say that his is a logical analysis and that anyone, for example, who questions the correlativity of Hohfeldian claims and duties is making a logical mistake (Kramer, 1998). But as Kramer says himself, ‘the Hohfeldian doctrine of correlativity is a definitional stipulation … and [f]or anyone who accepts Hohfeld’s definitions, the correlativity of rights and duties is a matter of logical necessity’ (Kramer, 1998, p. 30). To which it is tempting to say, that is exactly the point. Hobbes, given the choice, would presumably not accept the definition of a right as a claim. Rather, he uses the notion of liberty as the foundational definition of a right and then introduces duties not to interfere with the right-holder’s exercise of her right, as a way to protect some rights (under the second law of nature) and non-correlative duties (of the sovereign) as a way to protect the right to self-preservation.

Conclusion: Towards a Hobbesian Theory of Rights

If Hobbes’s theory of rights is not a natural rights theory dependent on natural law premises and if it cannot be adequately analysed using the Hohfeldian definitional scheme, then how are we to define it? If we look to modern rights theory could it be defined as a will or an interest theory of rights? Will theories may look promising at first glance because of their insistence that rights are under the control of the right-holder who may exercise choice over the right and its correlative duties. Given Hobbes’s initial description of rights held under the right of nature and the process by which individuals come to transfer invasive rights to each other and take on duties, one could see this as an indication that the rights are under the control of the right-holder. Hobbes certainly says that this is a voluntary process. A will theory will quickly run into trouble however, when we consider the right to self-preservation and its status as an inalienable right. It cannot be given up by the right-holder and so this right cannot be defined as a power of the right-holder to waive the enforcement of the duty correlative to it, in the way that a will theorist would want to define it (Simmonds, 2002, p. 310). In fact as there is, for Hobbes, no duty that is directly correlated to the right to self-preservation anyway, it is even more doubtful that we can apply the will theory. So, with will theories we also still run up against the problem of rights being defined in relation to correlative duties. This excludes Hobbes’s descriptions of both the rights held under the right of nature, which are simple liberties without correlative duties and the rights held under the aggregate right to self-preservation, which also have no directly correlative duties attached to them. 177

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One more likely alternative is to try to apply a MacCormickian interest theory of rights to Hobbes’s theory. Comparatively speaking, this avoids the difficulties of applying the will theory to Hobbes’s descriptions of the right of nature and the right to selfpreservation, as above, and it will allow a much more straightforward reading of Hobbesian rights than was possible using a Hohfeldian analysis.

An alternative approach to analysing Hobbesian rights. MacCormick’s interest theory One considerable advantage of the interest theory of Neil MacCormick is that it allows rights to be defined separately from the duties which protect them, … a theory which asserts the primacy of rights must necessarily postulate that there are goods or values which in their character as goods-which-ought-to-be-secured-to-individuals therefore count as ‘rights’. This is an analytical apparatus which will enable us to treat of rights as grounds for identifying duties and justifying various kinds of laws and political institutions. For rights so understood can genuinely be presented as logically prior to duties, or, at least, some duties; and as grounds for determining what it is wrong for the state to do to an individual, or indeed for one individual or group to do to another individual or group. (MacCormick, 1982, p. 144) While I am not sure what it means to say that rights are logically prior to duties,1 the crucial anti-Hohfeldian point, surely, is that what we call rights can be understood separately from the duties which protect them (which is not to deny that according to Hohfeld’s definition of a claim it is, and must be, strictly correlative to a duty). The MacCormickian rights are goods which ought to be secured/protected, rather than claims which must by definition be protected by directly correlated duties. This understanding of a right allows us to see the Hobbesian right of nature as being made up of rights or liberties which might (or might not) be the grounds for the duties of others. Hobbes does, of course, define a right as a liberty: ‘RIGHT, consisteth in liberty to do, or to forebeare’ (Leviathan, p. 189). If the (non-invasive) liberties

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described by Hobbes in the state of nature are liberties which are goods for individuals, which ought to be secured; then one way they can be secured is by individuals giving up or transferring some of the (invasive or harmful-to-others) liberties they have and taking on duties to respect the remaining liberties that they each hold onto. This is the process that Hobbes describes taking place when individuals conform to the second law of nature (as above). The rights (liberties) that were bare freedoms have now become protected by duties. This analysis provides a way of understanding the transfer of rights and taking on of duties that Hobbes describes, that does not strain the reading of the text in the way that the Hohfeldian analysis does. Using MacCormick’s understanding of a right, it is possible to explain how the rights of the aggregate right of nature can start out as unprotected liberties and then become protected by the duties of other individuals. In this case, the goods-which-ought-to-be-securedto-individuals are non-invasive Hobbesian liberties. And MacCormick also makes the point that I have made above, that claim rights may also be held against other individuals, they need not always be held against the state (MacCormick, 1982, p. 144, quoted above). So, this also allows for the holding of claims by individuals against other individuals. These may be legal rights once the sovereign has encoded the relevant rights and duties or they may be pre-legal or supra-legal political rights. The rights held under the aggregate right of nature then are bare liberties in the sense that they are unprotected by the duties of others, but they are not defined by the lack of duties of others, as Hohfeldian liberty rights are. This means that they can, as the political and legal circumstances change, become protected in various ways, 1. by the uptake of duties by individuals under the second law of nature 2. by the sovereign’s duties to encode and enforce the laws of nature 3. by the sovereign’s duties qua sovereign to protect the subjects and secure and maintain the peace, and provide the freedoms necessary for subjects to pursue a commodious life. If we were to define these changes according to a Hohfeldian analysis, we would have to say, as above, that new claim rights are added to the existing liberty rights or that the liberty rights are replaced by

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claim rights. And yet the sense Hobbes gives us is of the same rights that are unprotected in the state of nature, but that become protected under the second law of nature (by other individuals), and after the institution of a sovereign, by the sovereign’s duties as sovereign. This analysis also allows for complexity of rights. As above, a right may be both a liberty and a claim, or sometimes at first a liberty only, that is then strengthened by the addition of a claim to someone’s duty or duties. Or it might become strengthened by duties the right-holder has no direct claim to (the sovereign’s duties as sovereign). And a right may be unprotected or protected, in different ways, as above, ‘[r]ights, in short, may be more or less simple or complex and might be ranged on a scale of relative complexity’ (MacCormick, 1977, p. 206). This contrasts with the Hohfeldian analysis, according to which ‘rights are discrete and atomic: each type of right has one facet only, and each type of right is entirely distinct and separable from the other types’ (Simmonds, 2nd edn, 2002, p. 281). When this summary of rights in Hobbes’s theory is compared to the picture we get from someone such as Hampton, employing a Hohfeldian analysis, the difference is striking. On Hampton’s view we have all rights in the theory as liberty rights which are ‘non-moral’, which are never protected by the duties of others and which cannot therefore make life any more secure for Hobbesian subjects than it was in the disastrous state of nature. On this analysis, Hobbes’s persistent talk of rights makes little sense. It is hard to see why he made the right to preserve ourselves the cornerstone of his political theory and why he argues that we enter civil society in order to better exercise this right. Furthermore, it becomes impossible to see why when he acknowledges that we must give up our invasive liberties, he maintains against all probability and risking his reputation as an absolutist and a royalist, that we can never give up the right to preserve ourselves, that we hold onto it even against the sovereign and carry it with us into the commonwealth. Using MacCormick’s theoretical approach to rights rather than a Hohfeldian analysis, allows a reconstruction of Hobbes’s theory of rights that does not strain the text and that has far more explanatory power regarding the emphasis that Hobbes himself places on the importance and inalienability of non-invasive individual rights.

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Hobbes’s liberty theory of political rights MacCormick’s interest theory is certainly helpful in thinking about Hobbes’s theory of rights, though it is not perhaps, entirely satisfactory. It gets us much closer to the sort of modern, secular theory that Hobbes seems to be setting out in Leviathan, by steering us away from natural rights theories with metaphysical and theological natural law premises and from a Hohfeldian analysis that forces us to push Hobbesian rights into the categories of liberty rights and claim rights (and for most Hohfeldian commentaries on Hobbes just liberty rights, which are not even ‘most properly’ termed rights according to Hohfeld). It gets us closer, in my view, but perhaps not all the way, to a Hobbesian theory of political rights. It does not get us all the way because the invasive liberties of the right of nature held in the state of nature cannot be defined as rights on MacCormick’s analysis. They do not conform to the definition of ‘goods-which ought-to-besecured-to-individuals’ (as above, MacCormick, 1982, p. 144). They are ‘goods’ in a sense, at least in the context of the state of nature, but they should not be secured to individuals. There is no political case for securing them to individuals because to do so would be to entrench a war of each against each. It would be to secure war rather than peace. Once we agree to pursue peace and conform to the laws of nature they must be given up or transferred. So, far from being secured to individuals, Hobbes tells us that we must give up those liberties that we would not want others to hold against us. And yet he does clearly define these liberties as rights as long as we are in the state of nature. The other way in which Hobbes’s theory of rights does not quite fit MacCormick’s theory is with his use of ‘interests’ or ‘goods’ as the foundational definition of rights. Hobbes is consistent in using liberty as his foundational definition of a right, even if his definitions of liberty itself are not always consistent.2 Can the notion of interests be applied to the Hobbesian understanding of rights as liberties? In the state of nature, the bare liberties Hobbes describes could perhaps be broadly characterised as interests or goods for individuals on Hobbes’s account. They are necessary for self-preservation in a state without security. They allow individuals to pursue survival without hindrance. They are not, though, as above, rights that should be

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secured to individuals. And if we were to adopt the MacCormickian definition of a right, there will be many rights included under it that will not conform to Hobbes’s definition of a right as a liberty to do or forbear. In this sense MacCormick’s is too broad a definition, while Hobbes’s is narrow and specific to his argument for government. Perhaps then, Hobbes has his own theory of rights, some features of which do not fit into any of the theories of rights that I have mentioned. This theory provides what might be described as unprotected rights in the form of unlimited liberties held in the state of nature; simple liberties that are then transformed into protected rights when individuals conform to the second law of nature and institute a sovereign (as above). The protected rights are protected by the correlated duties of other individuals, which come to be encoded and enforced by the sovereign. And there is an aggregate right, a simple liberty from the state of nature: the right to self-preservation, which comes to be protected indirectly by the duties of the sovereign. What Hobbes seems to be saying with these rights is that all individuals have a fundamental right to preserve themselves, comprising a freedom to do or to forbear that itself comprises a lack of external impediments caused by the actions of others (at least in theory, though in the state of nature there will in fact be many impediments caused by others who have ‘rights to the same’). Hobbes also implies that we can have rights to things as well as to actions or forbearances (‘a right to every thing even to one anothers body’). The implication here is that the right is a freedom to take something or to have it or to invade it, or to harm it. The liberty, as I have said above, also has a normative element; it is a freedom from obligation, which could mean just a lack of obligation to do otherwise or that the freedom itself is morally justified (similar to Kavka’s notion of a permission right but without the implication of an authority to grant the permission). So, the fundamental right (which is an aggregate right) in the state of nature is a justified liberty to do or take anything that may be required for our preservation. And it seems that this right is, or starts out as, a pre-moral right. It is not until we conform to the laws of nature, presumably, that we acquire moral rights. But the right to do whatever we must in order to preserve ourselves is, according to Hobbes, already a right in the state of nature. If it is then a justified, unlimited liberty, what status does the right have? If not a moral

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right, could it be said to be a political right? Or is it perhaps a prepolitical right? Is Hobbes saying that prior to accepting limits on our freedom in accordance with the laws of nature (which comprise morality3) as long as we are not safe enough to seek peace, we have a right to preserve ourselves? In which case, what provides the normative element, the justification? According to what principle are we free from obligations in a pre-moral, pre-political state? In a state of anarchy or civil war, say in present day Iraq, is Hobbes saying that individuals are justified in doing whatever they must to survive, including invading others? These are difficult questions and clearly, much more would be needed to set out in detail a Hobbesian theory of rights and to see whether such a theory could stand up to philosophical scrutiny and whether and how it can be reconciled with the rest of his argument. My focus in this book has been narrow and my purpose has been to look afresh at the rights of subjects, as Hobbes describes them in Leviathan, mindful of the historical, political context in which it was written, in order to give a reading of the subjects’ rights that is true to the text and freed of the restrictive grip of a Hohfeldian analysis.

Avoidance of discussion of moral rights Throughout my exploration of Hobbes’s theory of rights, I have avoided entering the debate about Hobbes’s moral theory. I have remained agnostic on the question of what kind of moral theory Hobbes is proposing and have been neutral between the subjectivist and deontological readings. This might seem an unjustifiable omission given that most commentators discuss Hobbesian rights within the context of an analysis of his moral theory. But, in my view, at least in the case of commentators like Hampton and Finkelstein, getting caught up in that debate has forced a prejudgement of what Hobbes can and cannot say about the political rights of subjects. In Hampton’s case, for example, by deciding that Hobbes cannot include claim rights because his moral theory will not support such a notion, she is forced to find a way of interpreting the passages in Chapter 14 of Leviathan where it ‘sounds like’ Hobbes is describing rights with correlative duties (Hampton, 1986, p. 55) in such a way that he can be said to not really be doing so. And Finkelstein (2001), who, having so effectively described the importance of the right to

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self-defence and pointed out the political significance of subjects carrying it into the commonwealth and of its ‘revolutionary’ implications,4 is then forced to step back and say that because Hobbesian rights are only liberty rights they cannot be protected by duties, and because the laws of nature only apply ‘in foro interno’ to the sovereign, he/they cannot have political duties to protect rights of subjects but only moral ones (ibid., pp. 358–359). So, taking a position on Hobbes’s moral theory has sometimes restricted what commentators can say about the political rights Hobbes describes, to the point of denying what is clear in the text. My view is that it might be more productive or more illuminating to just lay out what he says on rights without placing theoretical restrictions on it first. That way we can be clear about what Hobbes says and then decide whether it is consistent with other aspects of his argument and other theoretical commitments we think he has. Theorising about rights is no straightforward matter anyway. Rights are notoriously slippery and difficult both to pin down conceptually and to find philosophical justification for. Also, by its very nature, the debate about Hobbes’s moral theory is particularly restricting for those who take the view that he holds a subjectivist, egoistic theory, because then any genuine morality is usually said to be precluded. In which case, no moral rights can be supported by such a theory. And discussions of rights in this context get mired in the controversies of the debate about what kind of moral theory Hobbes holds and often come to an end before they really get off the ground. My response to these difficulties was to go back to the text and to the historical, political context in which Hobbes was writing. He says a lot about the rights of individuals, and rights were a hotly contested issue before and during the Civil War; one of the issues that divided the two sides, in fact. On the royalist side the position was that all rights are given up to the sovereign and/or that they are his to distribute as he wishes. On the parliamentarian side some rights were to be retained, particularly the right to self-defence. The pronouncements on the rights of subjects, given in Chapter 21 of Leviathan were, at the time, politically explosive. The raft of rights, he declared subjects to hold and not give up: rights to resist, held even against the sovereign; rights to disobey the sovereign, if he so much as threatens your honour never mind your life; rights to look

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elsewhere for protection if the sovereign ceases to protect the subjects and so on would have been controversial for a moderate parliamentarian. For an absolutist to put such rights into the hands of the subjects seemed like political heresy and a betrayal of the royalist cause. And we should remember that Hobbes, rather than stating his work to be purely theoretical and above the fray of actual political debate and conflict, explicitly refers to it being ‘occasioned by the disorders of the present time’ and ‘without other designe, than to set before mens eyes the mutuall Relation between Protection and Obedience’ (Leviathan, p. 728). Given these considerations it is my view that we should take far more seriously than has often been the case, the rights that Hobbes describes for subjects and their significance both within his theory and in the political context of the time in which he was writing.

Unfinished business Having set out to explore Hobbes’s theory of rights and what it might contribute to our understanding of Hobbes’s political theory and to the development of theories of rights, I seem to have arrived only at the beginning of an attempt to really understand and analyse what a Hobbesian theory of rights might be and what it might contribute, rather than at the end. It seems to me that much more work would need to be done to provide a considered philosophical analysis of the theoretical strengths and weaknesses of his theory of rights, of the consistencies and inconsistencies with other parts of his argument and of whether and how it might be integrated with the argument as a whole. And it would also take a lot more work to consider in detail what a Hobbesian theory of rights might contribute to current discussions of rights. What I hope I have demonstrated, however, is that, contrary to much modern analysis, Hobbes does provide substantive political rights for subjects in his theory, at least as that theory is proposed in Leviathan. He shows how two important categories of rights come to be protected: by the duties of other individuals and by whoever holds the office of sovereign, respectively, and that those rights are therefore strengthened beyond the ‘bare liberties’ of the prevailing Hohfeldian analysis into genuine political rights. These protected rights make subjects in a Hobbesian commonwealth safer and better

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able to preserve themselves than they would be in a state of nature. The fact that Hobbes puts these rights in place for subjects at considerable cost both to his reputation as an absolutist and to the consistency of any possible argument for absolutism should make us at least question to what extent he was genuinely arguing for absolutism. And finally, his avoidance of the conventions of natural law premises to provide philosophical justification for the existence of inalienable rights for all individuals should make us aware of the originality of his theory of rights and the way that it was to presage the modern, secular theories of rights that were to come. For Hobbes, rights are liberties that are necessary for our self-preservation; bare and unlimited liberties in a state of nature where we are not safe enough to give up any means to survival, and protected liberties once we can agree to move towards peace and into civil society. The protected liberties we come to hold in a Hobbesian commonwealth allow us the freedom we require to pursue a commodious life in peaceful coexistence with others and when that peaceful coexistence is sufficiently threatened by sovereign abuses they allow us the freedom to rebel and to look elsewhere for protection.

Notes 1 Examining the Orthodoxy – Hobbes and Royalism 1. The assumption that royalism necessarily involves absolutism has been questioned by the constitutional royalists (see, for example, Smith, 1994). The notion of absolutism itself also poses problems. Glenn Burgess (1996) argues that absolutism was not nearly as widespread as it is often said to be in the early Stuart period and ‘even those people most likely to have been absolutists were not’ (ibid., p. 18). The reason, according to Burgess, for the assumption that absolutism was widespread lies partly in the conflation of the two separate issues of limitation and resistance, a limited king being taken to be one that is resistible and an unlimited king to be one that is irresistible. In the case of the former this ‘simply discounts the fact that royal self-limitation, according to the oath to govern legally made before God in the coronation service, was perfectly feasible in a world where divine punishment for sin was an accepted fact of life’ (ibid., p. 19). Burgess lays part of the blame for the confusion at the hands of the parliamentarian propagandists, who also defined absolute government as arbitrary or tyrannical government. Burgess’s own definition of absolutism is ‘the view that monarchs were not bound to rule in accordance with the law of the land’ (ibid., p. 210). For my purposes, however, I will accept the definition of absolutism that Burgess questions, as at least part of what is usually understood by the term. The power of the sovereign is unlimited and the subjects have no right of resistance. This should not be confused with the notion of the power of the sovereign being undivided, which is contrasted with a ‘mixed’ monarchy or sovereignty. Hobbes clearly supported undivided sovereignty against the contemporary notion of mixed monarchy where power was divided between various Estates, e.g., between King, Lords and Commons (see, for example, Leviathan, pp. 236–237). An understanding of absolutism that will become relevant in later chapters is that used by Jean Hampton, who defines it as the power to decide all questions in a commonwealth (Hampton, 1986, p. 104). 2. The name given to an extra-parliamentary levy raised by Charles I in 1626–27 to help pay for the war against Spain. It was the cause of a great deal of controversy at the time, as it raised the question of whether the king could legitimately take money from his subjects without the agreement of Parliament. The Forced Loan was famously defended in the sermons of Sibthorp and Maynwaring, and it was Maynwaring’s later imprisonment in the Tower of London that Aubrey refers to as the reason Hobbes gave for fleeing to France. Hobbes, acting as secretary to the Earl of Devonshire, helped to collect the Forced Loan. 187

188 Notes

3. Much more recently, however, Skinner has said that Hobbes’s theory should be seen alongside those of contemporary royalists. ‘Hobbes is thus lead to two contrasting conclusions about the liberty of subjects that bring his doctrine fully into line with that of other royalists such as Digges, Bramhall and Filmer’ (Skinner, 1998, p. 9). 4. At the time Hobbes was writing Leviathan, Cromwell held power and the royalists had been defeated. For a discussion of the effects of the threat of persecution on writers, see Leo Strauss, Persecution and the Art of Writing (1988): ‘The term persecution covers a variety of phenomena, ranging from the most cruel type, as exemplified by the Spanish Inquisition, to the mildest, which is social ostracism. Between these extremes are the types which are most important from the point of view of literary or intellectual history. Examples of these are found in the Athens of the fifth and fourth centuries B. C., in some Muslim countries of the early Middle Ages, in seventeenth-century Holland and England, and in eighteenth-century France and Germany – all of them comparatively liberal periods. But a glance at the biographies of Anaxagoras, Protagoras, Socrates, Plato, Xenophon, Aristotle, Avicenna, Averroes, Maimonides, Grotius, Descartes, Hobbes, Spinoza, Locke, Bayle, Wolff, Montesquieu, Voltaire, Rousseau, Lessing and Kant, and in some cases even a glance at the title page of their books, is sufficient to show that they witnessed or suffered, during at least part of their lifetimes, a kind of persecution which was more tangible than social ostracism’ (p. 33, my emphasis). 5. Hobbes went to the exiled royal court at St Germain outside Paris to present Charles with a copy of the manuscript of Leviathan and was told that Charles would not see him, (Tuck, 1993, p. 326). It is thought that his unconventional religious views had alienated Queen Henrietta and other Catholics, although there was some disagreement about who should take the ‘credit’ for his banishment from court. Clarendon said the Catholics were not involved and that it was he who was responsible for the ‘discountenancing of my old friend, Mr H[obbes]’ (Sommerville, 1992, p. 25, quoting Robertson 1905, 73n1). See also, Tuck, 1993, pp. 325–326. 6. Quentin Skinner has argued that some of those writing after the execution of Charles I, seeking to justify allegiance to the new regime and to persuade those on both sides that it was now legitimate for them to support and obey the new government, had certain arguments in common about the legitimacy of submitting to a de facto government and should therefore be put together and called the ‘de facto theorists’. He also argued that there is a strong case to be made that Hobbes can be considered a de facto theorist. 7. And to some extent the change had taken place in De Cive, but I am concentrating on the theory as formulated in Leviathan. For comments on the change on the right to resistance in De Cive, see Tuck, 1979, Ch. 6.

Notes 189

8. The Rump was the name given to the Parliament after the royalists were defeated for the second time in 1648, when it was purged of all those likely to object to the trial and execution of the king. The Rump ruled England for its first few years as a republic after the execution of Charles I in 1649. 9. The ‘Tew Circle’ is a name that has sometimes been given to a group of theologians and intellectuals, at least some of whom had royalist sympathies, who used to gather at Viscount Falkland’s house near Oxford at Great Tew in the 1630s. Their number included Henry Hammond, John Selden, Clarendon, William Chillingworth and Dudley Digges. It has been suggested that Hobbes could be considered a member of this group, and Tuck has argued that his political theory is closer to the work of these men (and to John Selden in particular) than to any other group of writers (see Tuck, 1993, pp. 279, 305). Others think it unlikely that Hobbes was a ‘member’ (Rogers ed., 1995, p. xvi).

2 The Political Context – Taking Sides? 1. S.A. Lloyd makes a similar point in the following way: ‘While Hobbes insists that we should regard our governments as having absolute authority, he reserves to subjects the liberty of disobeying those of their governments commands that would require them to sacrifice their lives or honor, at least when the commonwealth’s survival does not depend on their doing so. This exception has intrigued those who study Hobbes. His ascription of apparently inalienable rights – what he calls the “true liberties of subjects” – seems incompatible with his defense of absolute sovereignty’ (Lloyd, ‘Hobbes’s Moral and Political Philosophy’ in Stanford Encyclopedia of Philosophy (2002), http://plato.stanford.edu/entries/hobbes-moral/ accessed 20.03.07. 2. See Chapter 1, note 9. 3. See Chapter 1, note 6. 4. From January 1650 the new government required that all males over eighteen take the Engagement, the wording of which was: ‘I do declare and promise, that I will be true and faithful to the Commonwealth of England, as it is now established, without a king or House of Lords’. (Firth and Rait, 1911, 2: 325, quoted in Sommerville 1992, p. 66). 5. ‘… the work as it was finally printed may have been composed in three stages …’ (Tuck, 1993, p. 262). A manuscript was first discovered by Peter Laslett in 1939 and dated to 1635–42. Another manuscript ‘seems to have been finished in about 1629, and it was modified by Filmer during the later 1630s to form the version which Laslett printed; but part of the 1629 manuscript may date from c. 1614 … the second section which deals mainly with the history of the English Parliament, is appropriate to the parliamentary politics of the 1620s’ (ibid.). 6. This is a view closer to the sort of constitutionalism, rooted in common law, of legal thinkers such as Sir Mathew Hale and Sir Edward Coke (see, for example, Glenn Burgess, Absolute Monarchy and the Stuart Constitution, 1996).

190 Notes

7. Digges, D. ‘The Unlawfulness of Subjects Taking up Arms against their Sovereign’, (quoted in Tuck, 1993). 8. The notion of the three estates had been introduced to England in the mid-sixteenth century, representing the classical idea of tripartite government of the one, the few and the many. There are two versions, one including the king as above and one excluding the king with the three estates being bishops, lords temporal and commons. Although Charles said he supported the notion of the three estates in his answer to the Nineteen Propositions, we are justified in regarding this with scepticism. The writers of his reply, Falkland and Culpeper, committed the king to at least two propositions that were contrary to his real position. First, by naming the king one estate among three he was damaging his claim to sovereignty. Second, by excluding the bishops he strengthened the case of those who wanted to eliminate episcopacy. For a full discussion of the three estates, see Michael Mendle, Dangerous Positions, Mixed Government, the Estates of the Realm and the Making of the Answer to the xix Propositions (1984). 9. The Putney Debates were a series of meetings of the parliamentarian or New Model Army’s General Council of Officers at Putney Church, in October and November 1647, after parliamentarian victory in the first Civil War (1642–6). They debated how the kingdom was to be settled and particularly discussed whether the franchise should be extended and if so to whom. The main groups opposing one another were the ‘Independents’ or ‘Grandees’ and the representatives of the radicals in the army (for the most part the Levellers), who had been chosen by their regiments as ‘Agitators’. These men had been so successful at radicalising the troops that they refused to disband after the fighting was concluded. ‘Taking as their excuse the back pay that was owed to them, the soldiers refused to disband while negotiations for a permanent settlement were being conducted by the king, parliament and their officers. Fearing, quite rightly, that the relatively conservative, Presbyterian-dominated parliament wished to arrive at terms that would combine limited monarchy with the establishment of Presbyterian Church government in England, the soldiers of the New Model [army] sought means of achieving the republican, Congregationalist regime for which they had fought … . [t]he subject for discussion was the future constitution of England, the point of departure the two constitutional proposals that had been put forward during the summer: the Heads of Proposals, representing the views of the officers and An Agreement of the People, written by the Levellers in the army’ (Blitzer, 1963, p. 28). 10. The significance of the subject in Leviathan retaining his right to selfdefence and carrying it into the commonwealth, is not often recognised by modern Hobbes scholars but see, for example, Jean Hampton (1986) who argues that the retained right to self-defence undermines Hobbes’s argument for absolutism. See also Claire Finkelstein (2001) who has recently argued that the retained right to self-defence provides the subject with some protection against the sovereign.

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3 Liberties and Claims – Rights and Duties 1. See, for example: Finkelstein, C., ‘A Puzzle about Hobbes on SelfDefence’ in Pacific Philosophical Quarterly, 82 (2001) 332–361; Gauthier, D.P., The Logic of Leviathan (Oxford: Clarendon Press, 1969); Goldsmith, M.M., ‘Hobbes on Liberty’ in Hobbes Studies, 2 (1989), 23–39; Kavka, G.S., Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986); Hampton, J., Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986). Also, Warrender, H., The Political Philosophy of Hobbes, His Theory of Obligation (Oxford, Clarendon Press: 1957); although Warrender does allow for what he calls ‘entitlements’ (i.e. a right as that to which one is morally entitled which turns out, according to Warrender, to be better described by the duties it implies), these appear only in civil society when the individual ‘does collect some entitlements as against his fellow citizens, for the civil law does impose obligations upon them that secure him in some respects’ (ibid., p. 195). 2. There are, of course, important discussions of ‘liberty’ as a political concept closely connected to that of a right, such as that of Isaiah Berlin in Four Essays on Liberty (London: Oxford University Press, 1969) but once the term ‘political right’ is used it is almost always understood to imply correlated duties on the part of the state and/or other individuals. 3. There has been a sustained attack on theories of natural rights since Bentham’s infamous characterization of such theories as ‘nonsense upon stilts’. Bentham, J., ‘Anarchical Fallacies’ in J. Bowring (ed.) Works of Jeremy Bentham (New York: Russell and Russell, 1962), Vol. II, p. 105. Hobbes’s relationship to theories of natural law and natural rights will be discussed later in Chapter 5. 4. Hohfeld, W.N., Fundamental Legal Conceptions (Connecticut: Yale University Press, 1923). 5. Hobbes, T., De Cive (1647) in On the Citizen ed. and transl. R. Tuck and M. Silverthorne (Cambridge: Cambridge University Press, 1998), p. 111. ‘LIBERTY (to define it) is simply the absence of obstacles to motion; as water contained in a vessel is not free, because the vessel is an obstacle to its flowing away, and it is freed by breaking the vessel … . Obstacles of this kind are external and absolute; in this sense all slaves and subjects are free who are not in bonds or in prison. Other obstacles are discretionary; they do not prevent motion absolutely but incidentally, i.e. by our own choice, as a man on a ship is not prevented from throwing himself into the sea, if he can will to do so.’ This is the strictly physical definition of liberty that Hobbes expanded to include liberty from civil bonds (i.e. laws) as well as physical bonds. 6. See, for example, Hood, F.C., ‘The Changes in Hobbes’s Definition of Liberty’, Philosophical Quarterly, 17 (1967), pp. 150–163; and Pennock, J.R., ‘Hobbes’s Confusing “Clarity”: The Case of Liberty’, American Political Science Review, 54 (1960), 428–436.

192 Notes

7. Hobbes, T., MSS (Chatsworth) Box 1, (D), no. 5, in ‘Hobbes on Sovereignty: An Unknown Discussion’, Political Studies, XIII (1965), pp. 213–218, my emphasis. 8. Hampton refers to the following passages in De Cive and Chapter 14 of Leviathan. Hobbes ed., Tuck and Silverthorne (1998, p. 27), ‘… each man is drawn to desire that which is Good for him and to avoid what is bad for him, and most of all the greatest of natural evils, which is death; … It is not therefore absurd, nor reprehensible, nor contrary to right reason, if one makes every effort to defend his body and limbs from death and to preserve them. And what is not contrary to right reason, all agree is done justly and of right.’ 9. Strauss, L., The Political Philosophy of Hobbes: Its Basis and Its Genesis (1936), transl., E.M. Sinclair (Chicago: University of Chicago Press, 1952, Midway Reprint 1984). Strauss argues that Hobbes was the first to place the rights of the individual at the centre of political theory. ‘According to Hobbes, the basis of morals and politics is not the “law of nature”, i.e. natural obligation, but the “right of nature”. The “law of nature” owes all its dignity simply to the circumstance that it is the necessary consequence of the “right of nature”’ (p. 155). ‘Hobbes, and no other, is the father of modern political philosophy. For it is he who, with a clarity never previously and never subsequently attained, made the “right of nature”, i.e. the justified claims (of the individual) the basis of political philosophy, without any inconsistent borrowing from natural or divine law’ (p. 156). This strikes me as a great insight into Hobbes’s theory; that for Hobbes it is always the individual and his right to preserve himself that drives the political theory. 10. There are those who argue that one aspect or another of the theory of rights is perhaps stronger than has generally been assumed [see, for example, Claire Finkelstein (2001) on the right to self-defence, also Hampton (1986) on self-defence, S.A. Lloyd (2002) on inalienable rights and Edwin Curley in his introduction to Leviathan (1994a) on the extent of the subjects’ liberty and a possible right to rebellion] but none who argue for a strong theory of rights overall. 11. See, for example, Warrender (1957, p. 253), Baumgold, D., Hobbes’s Political Theory, (Cambridge: Cambridge University Press, 1988), and Ryan, A. in T. Sorell ed., The Cambridge Companion to Hobbes (Cambridge: Cambridge University Press, p. 235), who says that Hobbes gives ‘no suggestion that the sovereign’s political self-control reflects the subject’s rights. Indeed, Hobbes is at pains to deny it …, the subject, having given up his rights, cannot now appeal to them. Moreover, the one area in which Hobbes breaks entirely with later writers on human rights is his insistence that we have no right to have a share in the sovereign authority.’

4 The Full Right to Self-Preservation and Sovereign Duties 1. See, for example, Kymlicka, W., Contemporary Political Philosophy (Oxford: Clarendon Press, 1990), p. 130. ‘… as Hobbes put it, there is a

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2.

3. 4. 5. 6.

7. 8. 9. 10.

11.

12. 13.

14. 15.

“power irresistible” on earth, and for Hobbes and his contemporary followers, such power “justifieth all actions really and properly, in whomsoever it is found.” No one could claim rights of self-ownership against such power.’ See also, Gauthier, D.P., The Logic of Leviathan (Oxford: Clarendon Press, 1969); Kavka, G.S., Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986); Hampton, J., Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986); and Warrender, H., The Political Philosophy of Hobbes, His Theory of Obligation (Oxford: Clarendon Press, 1957). For an exception to this, see Warrender (pp. 180–186) where his discussion of sovereign duties ‘though owed to God and not to the subject’ includes the observation that Hobbes’s definition of safety covers ‘not merely the preservation of life but also of the means to live well’ (Warrender, p. 181). Although it should be noted that this does not strengthen self-preservation as a right in Warrender’s view. Also see Hampton (1986) who eventually argues that the right to self-defence is so strong that is threatens the entire argument for absolute government. Curley, E. ed., Leviathan (Indianapolis: Hackett Publishing Company, 1994); see, for example, p. xxxviii. Condren, C., Thomas Hobbes (New York: Twayne Publishers, 2000); see, for example, p. 127. Hampton (1986). See, for example, Ryan, A., ‘Hobbes’s Political Philosophy’ in Tom Sorell ed., The Cambridge Companion to Hobbes (Cambridge: Cambridge University Press, 1996), p. 235, ‘the subject having given up his rights cannot now appeal to them’. Also, see Kymlicka (1990, p. 130 as above note 1). See discussion of liberty in Chapter 3. See discussion of Hohfeldian rights in Chapter 3. See the discussion of the transfer and renouncing or rights under the second law of nature in Chapter 3. See, for example, Leviathan, Chapter 15, p. 215, squib ‘The Science of these Lawes, is the true Morall Philosophy’ and p. 216, ‘… the true Doctrine of the Lawes of Nature, is the true Morall Philosophie’. See, for example, Kavka (1986, pp. 356–357); Warrender (1957, Ch. 8); Ryan, A., ‘Hobbes’s Political Philosophy’ in Tom Sorell ed., The Cambridge Companion to Hobbes, (Cambridge: Cambridge University Press, 1996). See Hampton (1986, p. 32). ‘The Lawes of Nature oblige in foro interno; that is to say, they bind to a desire they should take place: but in foro externo; that is, to the putting them in act, not always’ (Hobbes, 1968, p. 215). See, for example, Harvey, M., ‘Moral Justification in Hobbes’ in Hobbes Studies, XII (1999), 33–51. I am using the notion of duties as a requirement of a job here in the same way that Alan White analyses ‘duties’ as in the duties of a job (White, A.R., Rights, Clarendon, 1984). ‘Duties are commonly attached to roles or jobs’ (p. 22) and ‘When I take on a job I take on certain duties’ (p. 23)

194 Notes

16.

17.

18. 19. 20. 21.

22.

and these duties need not exist except as duties of the job. ‘My duties commence and finish with my work’ (ibid.). For an interesting argument that is a variation on the notion of sovereign duties owed to the people, see Rhodes, R., ‘Creating Leviathan: Sovereign and Civil Society’, History of Philosophy Quarterly, 11 (2) (April 1994). I am grateful to Michael Moore (in his capacity as editor of Law and Philosophy) for initially pointing out to me the possibility that the sovereign’s duties might be owed to no one. Edward Hyde, the Earl of Clarendon, see Chapters 1 and 2. Clarendon (1676, p. 43) cited in Curley ed., Leviathan, 1994a, p. xxxviii. See Chapter 3. For a clear discussion of the Hohfeldian analysis of rights and the ‘atomic’ view of rights assumed by it, see Simmonds, N.E., Central Issues in Jurisprudence; Justice, Law and Rights (London: Sweet and Maxwell, 2nd edn, 2002), Chapter 8. And for a more detailed discussion, see Simmonds, N.E., ‘Rights at the Cutting Edge’ in Kramer, Simmonds and Steiner eds, A Debate over Rights (Oxford: Clarendon Press, 1998). I am grateful to Stuart Toddington for a discussion about this.

5 The Natural Rights Tradition – With or Without Hobbes? 1. As Locke famously says of the state of nature, ‘… though this be a state of liberty, yet it is not a state of license: … The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure’ (Locke, J., Second Treatise of Government (1690) C.B. Macpherson ed. [Indianapolis: Hackett, 1980, p. 9]). 2. Lloyd argues that Hobbes has an unconventional ‘self-effacing’ natural law theory. 3. See Chapter 3. 4. See Zagorin, P., ‘Hobbes Without Grotius’, History of Political Thought, XXI, (1) (Spring, 2000); Harvey, M., ‘Grotius and Hobbes’, British Journal for the History of Philosophy, 14 (1) (2006). 5. Bentham, J., ‘Anarchical Fallacies’, in J. Bowring ed., Works of Jeremy Bentham (New York, Russell and Russell, 1962) Vol. II, p. 105. 6. Hume, D., A Treatise of Human Nature, Bk III. 7. It is worth noting that Finnis’s sophisticated defence of natural law and natural rights theory arguably avoids the standard criticism that natural law theory draws moral conclusions from factual premises. Finnis argues

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8. 9. 10.

11.

12.

13.

14.

15.

16.

that his own version (and, he argues, Aquinas’s and Aristotle’s as well) does not fall foul of the naturalistic fallacy because he merely describes what is self-evidently good for creatures like us. We are, as it were, made for friendship and so friendship is a good for us. His ‘forms of good’ are forms of human flourishing and not yet moral goods. Waldron, J., ‘The Role of Rights in Practical Reasoning: “Rights” Versus “Needs”’, The Journal of Ethics, 4 (2000), 119. The natural law theory I am referring to in this chapter is that of natural law as a moral theory rather than as a legal theory. Although Zagorin points out that Grotius was not the first to formulate this hypothesis, indeed it was, ‘long familiar to students of natural law through its formulation by such noted late medieval thinkers as Gregory of Rimini and Gabriel Biel, as well as by some of their Catholic successors in the sixteenth century’. Zagorin, P., History of Political Thought, XXI, 1 (Spring, 2000), 29. He also says that it was mentioned by Suarez. D’Entrèves sees this as the beginning of a move away from theological premises for natural law theory. ‘[Grotius] proved that it was possible to build up a theory of laws independent of theological presuppositions. His successors completed the task. The natural law which they elaborated was entirely “secular”’ (d’Entrèves, 1951, p. 52). Finnis and others have argued that the use of the hypothesis that God might not exist was prevalent in natural law theory long before Grotius and as far back as the fourteenth century (Finnis, 1980, p. 43). ‘These dictates of Reason, men use to call by the name of Lawes; but improperly: for they are but Conclusions or Theoremes concerning what conducith to the conservation and defence of themselves; wheras Law, properly is the word of him, that by right hath command over others. But yet if we consider the same Theoremes, as delivered in the word of God, that by right commandeth all things; then are they properly called Lawes’ (Leviathan, p. 217). ‘A LAW OF NATURE, (Lex Naturalis) is 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’ (Leviathan, p. 189). ‘The modern theory of natural law was not, properly speaking, a theory of law at all. It was a theory of rights. A momentous change has taken place under cover of the same verbal expressions. The ius naturale of the modern political philosopher is no longer the lex naturalis of the medieval moralist nor the ius naturale of the Roman lawyer’ (d’Entrèves, 1951, p. 59). Strauss, L., The Political Philosophy of Hobbes: Its Basis and Its Genesis, transl. E.M. Sinclair (Chicago: University of Chicago Press, 1952, Midway Reprint 1984). As discussed in Tierney, B., Finnis, J.M., Kries, D., and Zuckert, M.P., ‘Natural and Natural Rights Old Problems and Recent Approaches’, Review of Politics, 64 (3) (Summer, 2002).

196 Notes

17. De cive: The English Version, Howard Warrender ed., (Oxford: Clarendon Press) p. 170, quoted in Tierney et al. 2002, p. 6. 18. Ibid. 19. D’Entrèves (1951). 20. Tuck (1979, p. 13). 21. If one sees the culmination of natural rights theories in the Lockean tradition of liberal political theory that was expressed in the American Declaration of Independence and the Déclaration des Droits de l’Homme et du Citoyen of the French Revolution, then an important element is the raising of individual rights above those of the state. 22. Harvey, M., ‘Grotius and Hobbes’, British Journal for the History of Philosophy, 14 (1) 2006, 35–36. Where I part company with Harvey’s analysis is on points of comparison between Grotius and Hobbes on this aspect of rights. Harvey argues that Hobbes also sees rights as commodities to be ‘traded away in exchange for admission to political society’ (ibid.) and this despite his admission that Hobbes ‘argues that the core of the right of nature is inalienable’ (ibid., n. 38). 23. For an illuminating refutation of Tuck’s argument see Zagorin, P., ‘Hobbes without Grotius’, History of Political Thought, XXI (1) (Spring 2000). 24. On a strictly deontological reading of the laws of nature that takes the laws of nature to apply even in the state of nature, there would be at least Hobbes’s notion of justice, but this requires stretching the application of ‘in foro interno’ to include actions as well as conscience (Leviathan, p. 215).

6 Current Discussions of Hobbesian Rights. The Distorting Lens of Hohfeld 1. Although Kavka renames a liberty right a ‘permission right’. 2. More precisely Hohfeld defines a liberty or privilege as being correlated with a no-right, ‘… a privilege is the opposite of a duty, and the correlative of a “no-right.” In the example last put, [in which X owns some land] whereas X has a right or claim that Y, the other man should stay off the land, he himself has the privilege of entering on the land; or in equivalent words, X does not have a duty to stay off. The privilege of entering is the negation of a duty to stay off.’ See also the discussion of the definition given in Chapter 3. 3. Lloyd argues that Hobbes holds an unconventional natural law theory. 4. There is, of course, debate within Hobbes scholarship about whether or not the laws of nature apply in the state of nature, whether they ever apply in foro externo rather than merely in foro interno, etc. See, for example, LeBuffe (2003). But for my purposes here I am assuming the ‘traditional’ view that the state of nature is not governed by a moral law. 5. See, for example, Jeremy Waldron (1984, p. 8): ‘Hohfeld’s claim-right is generally regarded as coming closest to capturing the concept of individual rights used in political morality.’

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6. I am grateful to Sean Coyle for initially drawing my attention to the lack of fit between Hohfeld’s liberty right and Hobbes’s right of nature because of the legal context of Hohfeld’s analysis, and for several subsequent discussions about it. 7. The question of what exactly the term ‘absolutism’ refers to is a complex one, particularly during the period in which Hobbes was writing, but here I am assuming what commentators commonly mean by the term, namely, unlimited sovereignty, rather than, for example, undivided sovereignty. Hobbes clearly supported undivided sovereignty against contemporary notions of ‘mixed monarchy’ where power was divided between various estates, e.g., King, Lords and Commons. It should also be noted that Hampton defines absolutism as the power to decide all questions in a commonwealth (Hampton, 1986, p. 104). 8. For example, Mathew Kramer says, ‘… virtually every aspect of Hohfeld’s analytical scheme applies as well, mutatis mutandis, to the structuring of moral relationships’ (Kramer, M., ‘Rights Without Trimmings’, in A Debate over Rights,eds Kramer, Simmonds and Steiner (Oxford: Oxford University Press, 1998, p. 8). Also, Jeremy Waldron, ‘… it is clear that Hohfeldian analytics can be used to define a logical relation between moral duty and moral right just as easily as between legal duty and legal right’ (Waldron, J., ‘The Role of Rights in Practical Reasoning: “Rights” versus “Needs”’, The Journal of Ethics, 4 (2000), 115–135, 118. 9. ‘In saying that we have a right of nature, [Hobbes] is saying that as human beings we are under no natural normative restrictions on our pursuit of self-preservation’ (Kavka, 1986, pp. 299–300). 10. See also the discussion of Warrender’s analysis of Hobbesian rights in Chapter 3. 11. See Chapter 3. 12. See Chapter 3 for an argument against Hampton on this. 13. Remembering, as discussed in Chapter 3, the definition of liberty for Hobbes as an ‘absence of external impediments: which impediments would oft take away a mans power to do what he would’ (Leviathan, p. 189) that has a normative element (it is also a freedom from obligation, which includes a freedom from ‘civil bonds’ or laws), so it is a justified freedom. And also, Hobbes uses ‘right’ (‘liberty to do or to forbear’) in the context of describing a freedom from interference by the actions of others rather than purely in the sense of an absence of physical or natural impediments. 14. ‘The Law of Nature and the Civill Law, contain each other and are of equal extent. For the Lawes of Nature, which consist in Equity, Justice, Gratitutude, and other morall Vertues on these depending, in the condition of meer Nature … are not properly Lawes, but qualities that dispose men to peace and obedience. When a Common-wealth is once settled, then are they actually Lawes, and not before; as being then the commands of the Common-wealth; and therefore also Civill Lawes’ (Leviathan, p. 314). 15. Hobbes’s strong theory of sovereignty would not allow the sacrifice of any rights. This cannot be discussed here however.

198 Notes

Conclusion 1. Kramer thinks MacCormick has missed the logical entailment between rights and duties, and mistaken it for justificatory priority which he wishes to challenge. Giving justificatory priority to rights is fine, argues Kramer, but does nothing to dispute the logical entailment between rights and duties (Kramer, in Kramer, Simmonds and Steiner eds, 1998, pp. 37–38). 2. See Chapter 3. 3. ‘The Science of these Lawes, is the true Morall Philosophy’ (Leviathan, p. 215, squib). 4. ‘In other words, by retaining the right to self-defense, they have retained a natural right of revolution’ (Finkelstein, 2001, p. 358).

NB: All references to Hobbes’s Leviathan (first published 1651) are to the 1968 edition, C.B. Macpherson ed., published by Pelican Books, 1968, reprinted in Penguin classics 1985.

Abbreviations EW The English Works of Thomas Hobbes, Sir William Molesworth ed., 11 vols (London: 1839–45). El of Law The Elements of Law: Human Nature and De Corpore Politico (1640) J.C.A. Gaskin ed. and transl. (Oxford: Oxford University Press, 1994). De Cive On the Citizen (1642) R. Tuck and M. Silverthorne eds and transl. (Cambridge: Cambridge University Press, 1998).

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Index Divine Right Theory, 28–31

protected rights or claim rights, 72–76 right, defination of, 68 right of nature, 69–71 Hohfeldian Rights, 66–67 in Hobbes scholarship, 153–156 Inalienable Rights, 46, 47 Overton on, 47 Winstanley on, 49 Liberty Rights: definition of, 67 in Hobbes, 153–159

Equality Clarendon on, 32 Diggers on: Winstanley on, 48 Filmer on, 29 Ireton on, 42 Levellers on, 44 Lilburne on, 44 Parker on, 42 Ind. Rights Analysed by Gauthier, 78–87 Analysed by Kavka, 88–91 Analysed by Hampton, 91–97 Analysed by Warrender, 97–100 and interest/benefit theories, 178–182 and moral rights, 183–184 and Neil MacCormick’s theory, 178–182 and will/choice theories of rights, 177 and Parliamentarianism: Lilburne on, 44, 45, 46 Parker on, 43 Walwyn on, 46 and Royalism: Clarendon, 36, 37 Digges, 37 Filmer, 31 Claim Rights: definition of, 67 Hobbesian Rights as foundational, 181, 183 liberty, definition of, 68

Law Ascham on, 51 Clarendon on, 34–36 Diggers on, 48–49 Filmer on, 30 Levellers on, 44–47 Lilburne on, 45, 46 Winstanley on, 49 Natural Law and the DeFacto theorists, 49–52 and the Diggers, 49 and the Levellers, 46 Ascham, Anthony, 51 History of, 128–132 Premises of, 132–133 Hobbes and, 133–135 Relationship to Nat. Rights, 135–147 Natural Rights and the DeFacto theorists, 140–146 Ascham, 51 204

Index

and the Diggers Winstanley, 49 and the Levellers, 46, 47 Overton on, 47 History of, 126–128 Hobbes and, 140–150 in Grotius, 37 Relationship to Nat Law, 135–147 Parliamentarians Moderate, 38 Cromwell, Oliver, 45 Herle, Charles, 41 Hunton, Philip, 39–40 Parker, Henry, 40–41, 42 Radical: Lilburne, John, 44 Winstanley, Gerrard, 48 Putney Debates, The, 45

Royalism Definitions of, 13–14 Hobbes, relationship to, 11–25 Royalists Moderate: Clarendon, 13, 14, 31–35 Digges, Dudley, 37 Radical: Filmer, Sir Robert, 14, 28–31 Sovereignty Clarendon on, 33, 34 Cromwell on, 45 Filmer on, 29 Hunton on, 39 Lilburne on, 44, 45 Parker on, 40, 41 Winstanley on, 48

205