Sovereignty as a Vocation in Hobbes’s Leviathan (2)
This online colloquium is dedicated to discussing Matthew Hoye’s book, Sovereignty as a Vocation in Hobbes’s Leviathan. The discussion will commence with three critical commentaries, presented by Diego Rossello, Andrés Rosler and Meghan Robison. The author will then respond to his critics. We extend our gratitude to Amsterdam University Press for their support of this colloquium.
son. The author will then respond to his critics. We extend our gratitude to Amsterdam University Press for their support of this colloquium.
Andrés Rosler
Universidad de Buenos Aires, CONICET
Calling Sovereign Virtue
At first glance, if told about the very recent publication of J. Matthew Hoye’s book, Sovereignty as a Vocation in Hobbes’s Leviathan, it is more than likely any reader interested in Hobbes’s political theory—particularly his Leviathan—would go: “just what the world needs, another book on Hobbes and sovereignty”. However, the very reference to the combination of sovereignty and vocation in the title of the book indicates that its subject-matter is not just another day in the office of Hobbesian studies in that the idea of sovereignty is not understood in simply institutional or impersonal terms, or as a quasi-theological affair indicating the workings of some kind of God. This is a book that aims at showing how the concrete virtues of the natural person (or persons) of the sovereign bear upon the abstract “Seat of Power”.
Mind you, as Hoye states, there has been no shortage of scholarship on Hobbes dealing with moral and civic virtue in the latter’s political work. However, that is the point: most of that scholarship focuses on the virtue of the sovereign’s citizens but not on the virtue of sovereign agency in itself (8, 20, 135, 179, 260).[1] Hoye’s work stands out as an impressive attempt to show how “the virtues of the natural person bearing the office of the sovereign suffuse Hobbes’s political philosophy” (7). Hoye has certainly a point that if Hobbes’s purpose is to teach “both how to govern, and how to obey” (8), Hobbesian scholarship has been largely interested in explaining only half of Hobbes’s purpose, viz. how subjects and/or citizens are supposed to obey, but not quite in showing how the sovereign is supposed to govern. Any reader of this book will have to agree that “teaching sovereigns ‘how to rule’ is fundamentally important to Leviathan’s political philosophy” (9), as important as teaching citizens how to obey.
Hoye shows that although Hobbes’s Leviathan has a lot to say about the need of sovereignty (including institutional design, law, etc.) to keep deep political strife at bay, Hobbes is also keen on showing how “any sovereign who acts like a stereotypical Hobbesian agent is sure to invite discord, civil war, and perhaps their own destruction, all at their own fault” (9). So, even if “taken from the perspective of Hobbes’s discussion of the subject’s obedience, the sovereign can do no wrong”, “taken from the perspective of Hobbes’s discussion of that sovereign’s character, they most certainly can do wrong, where wrong is a measure of actions that naturally spur subjects to revolt, no matter what the sovereign commands, the state ideology extols, or the science of politics dictates” (20). There appears to be then some sort of “moral causation” behind Hobbes’s recommendations to sovereign agents about how to act in so far as moral virtue can contribute to empirical analysis and avoid some undesirable results:[2] “Subjects may not have any right to disobey…, but they will nevertheless. That is Hobbes’s point. (…). Sovereign vice rots out the state. What remains is a real threat of civil war and a pervasive desire by the multitude (informed by experience) for a new founder, a leader of eminent virtue” (20).
For obvious spatial reasons in what follows I’d like to concentrate my attention on one single aspect of the book, namely Hoye’s reluctance to subscribe what he calls “the ‘orthodox’, ‘traditional’, or ‘standard’ view of Hobbes as a forefather of legal positivism” (216). Hoye assumes that Hobbes’s insistence on sovereigns to take natural justice seriously is not compatible with legal positivism. Still, I’d say that it is not all that easy to expel Hobbes from the camp of legal positivism.
According to Hoye, “Hobbes is neither a positivist, in H. L. A. Hart’s sense…, nor a command theorist, in John Austin’s sense…. In both cases, the reason is that the ultimate source of civil law’s legitimacy is the social contract” (216, n. 2). It is absolutely true that Hart and Austin are not contractarian thinkers. However, part of the point of subscribing to legal positivism is that legal positivism keeps the normativity of law aloof from its legitimacy. Hence, legal positivism may well be go hand in hand with different accounts of legitimacy: contractarian, utilitarian, etc. Contemporary legal positivism treats this as a conceptual matter, but in Hobbes’s case this is explained mainly by political reasons. The only way to keep, say, civil war at bay is to avoid bringing moral or political guests into a legal party. This is the original beauty of the command theory of law.
Secondly, Hoye claims that “Contrary to Hart, Hobbes makes clear that where the civil laws are antithetical to the natural laws, they are in fact simple coercion” (216, n. 2). Hoye seems to rely on a passage often neglected by Hobbesian scholarship, a rather baffling statement in Leviathan, chapter XXIV, regarding the distribution of lands by the sovereign made “in prejudice” of “the common Peace and Security”, a distribution that Hobbes takes to be “contrary to the will of every subject, that committed his Peace, and safety to his discretion, and conscience; and therefore by the will of every one of them, is to be reputed voyd” (225, emphasis added by Hoye). This statement seems to be behind Hoye’s claim that “Hobbes makes clear that where the civil laws are antithetical to the natural laws, then the civil laws lose their force, and although they are still promulgated as laws, they are in fact simple coercion” (216, n. 2). Hobbes’s claim is a puzzling statement since the sovereign may well breach natural law but that does not affect the legal normativity of his dispositions.
It is even more perplexing that having taken the high road of natural law, Hobbes immediately adds that this distribution of land may well be “a breach of trust and of the Law of the Nature; but this is not enough to authorize any subject, either to make warre upon, or so much as to accuse of Injustice, or any way to speak evill of their Soveraign; because they have authorized all his actions, and in bestowing the Soveraign Power, made them their own” (225). This distribution then may well be taken to be legally void by the citizens, but it has much the same practical effect as any legally binding disposition enacted by the sovereign. Perhaps it is mainly a question of reputation: subjects are to repute void what is actually legally binding.
Now there is reason to believe that Hart himself felt rather close to Hobbes’s political philosophy. For instance, in his essay “Commands and Authoritative Legal Reasons”, in which he sets out to explain his theory of legal authority on the basis of Bentham’s jurisprudence, Hart holds that “the main criticism” which he makes to Bentham “was first suggested to me by Hobbes who said some simple but illuminating things about commands and the similarity between commands and covenants as sources of obligation or as obligation-creating acts”. Hart immediately adds: “But I do not thing I should have seen the full importance of Hobbes’s remarks on these topics had I not had the benefit of the work of Joseph Raz on what he terms ‘exclusionary reasons’ which resembles in many respects the notion which I have taken from Hobbes”.[3] Hart’s reference to Raz is also revealing since at Oxford Hart used to prescribe “a tough course of reading in what he saw as the philosophical classics pertaining to the student topic’s”, and Raz—who wrote his doctoral dissertation under Hart’s supervision—recalled that the latter “didn’t make suggestions except for some strategic things: for example: ‘Do I have to read anything by Hobbes in order to say anything about him? («Yes!»)’”.[4]
Furthermore, and this goes to the very heart of his theory of law, in a working notebook en route to The Concept of Law, Hart already states his key idea of “the notion of a rule binding valid by virtue of its ‘source’ not content”, which is a theme on the variation of the content-independent nature of commands in Hobbes’s case and of rules in Hart’s. Now Hart’s notebook is rather scarce regarding reference to other authors: “Hans Kelsen is the only theorist who appears to preoccupy Herbert (his few companions being John Austin, Jerome Frank, Thomas Hobbes, and the Hobbes scholar Howard Warrender, of whom only the last gets more than one mention)”.[5] Indeed, Hart writes down in his notebook that: “Obligation as the differential of modern nature of law but caricatured by command. This is likely to become central idée maitresse of the book. What principles are may become clear in course of reading Warrender in this can I draw my distinction between the command habit caricature and the far more central notion of rule-like acceptance”.[6]
It goes without saying that Hart is making reference to Howard Warrender’s classical study on Hobbes’s theory of obligation: The Political Philosophy of Hobbes (Oxford University Press, 1957), which came out not long before or perhaps just when Hart started working on his masterpiece The Concept of Law. If I’d have to select a single text from Warrander’s book that may have caught Hart’s eye I’d put my money on the following passage: “The reason why the individual ought to obey the civil law is, in the first place, that he has covenanted to do so, and not that the punishments of the sovereign bring it about that obedience is in his interest. This is made more evident by Hobbes in a passage where he distinguishes between the citizens being obliged to obey the covenant for its own sake, and ‘being tied being obliged’, or being compelled by the sanctions of the civil law to honour his obligations”.[7] The passage by Hobbes at stake (in De cive, chapter XIV.2) sounds remarkably Hartian: “Some have thought that being obligated and being kept to one’s obligation are the same thing and that consequently this is a verbal not a substantial distinction. So I will put it more clearly. A man is obligated by an agreement, i.e. he ought to perform of his promise. But he is kept to his obligation by a law, i.e. he is compelled to performance by fear of the penalty laid down in the law”.[8] Of course, Hart prefers to understand obligations in terms of general social practices rather than in contractarian terms, but there is a remarkable Hobbesian air to Hart’s distinction between having an obligation to do something and being obliged to do it.[9]
The same applies naturally to Hart’s corresponding distinction between the internal and the external viewpoints on obligation and Hobbes’s distinction between obligations in foro interno and in foro externo. Warrender explains that: “The obligations of man in the State of Nature can be made to show very different characteristics according to the perspective from which they are described”. The very same obligation “considered from the point of view of the individual living in the State of Nature” would be seen in a different light by “outside observer… who contemplates the condition of men in the State of Nature”: “In this condition [the State of Nature] men may discharge their obligations, but in their relations with their fellow men, they may present to the external observer forms of behaviour which would be consistent with a situation in which no obligations existed whatsoever. (…). Even if the State of Nature were a condition of security, but still a condition where every man had to interpret the law for himself, duty could be completely discharged with each man obeying his version of natural law, but men could still present the external appearance of living in a state without obligations”.[10] Of course, the content of Hobbes’s distinction does not correspond entirely to Hart’s, but the point is that their structure is quite the same: obligations look rather different if seen from the internal and the external viewpoint, if not entirely non-existent.
To conclude, Hoye’s new book on Hobbes with its salutary emphasis on natural virtue as a vocation for sovereigns is a correction to the somewhat exaggerated attention paid to the impersonal nature of Leviathan and a refreshing challenge for anyone interested in Hobbes’s political philosophy.
[1] Unless otherwise stated, numbers between brackets refer to J. Matthew Hoye, Sovereignty as a Vocation in Hobbes’s Leviathan: New Foundations, Statecraft, and Virtue, Amsterdam: Amsterdam University Press, 2004.
[2] For the idiom “moral causation” see Terence Irwin. “Moral Science and Political Theory in Aristotle”, History of Political Thought 6 (1985): 154, 163.
[3] Hart, H. L. A. Essays on Bentham. Oxford: Oxford University Press, 1982, 244.
[4] Nicola Lacey. A life of H. L. A. Hart. The Nightmare and the Noble Dream. Oxford: Oxford University Press, 2004, 161.
[5] Lacey, A Life of H. L. A. Hart, 227 (emphasis added).
[6] Lacey, A Life of H. L. A. Hart, 228.
[7] Howard Warrender, The Political Philosophy of Hobbes. Oxford: Oxford University Press, 2005, 205.
[8] Thomas Hobbes, On the citizen, edited by Richard Tuck and Michael Silverthorne, Cambridge: Cambridge University Press, 1998, 155.
[9] See H. L. A. Hart, The Concept of Law, 2nd ed., edited by Penelope Bulloch and Joseph Raz, Oxford: Oxford University Press, 1994, 82-90.
[10] Howard Warrender. The Political Philosophy of Hobbes, 68-70.
