Al Martinich vs. John Deigh on law. Part 2: Deigh.

This is the first in a series of debates about entries in The Oxford Handbook of Hobbes, ed. A.P. Martinich and Kinch Hoekstra (OUP 2016 – see here).

This first debate features a critique by one of the editors, Al Martinich, of John Deigh’s chapter ‘Political Obligation’. Martinich’s critique is here.

Reply to Martinich

John Deigh

University of Texas at Austin

I am grateful to Al Martinich for his astute and careful discussion of the argument of my contribution, ‘Political Obligation’, to the splendid volume on Hobbes that he and Kinch Hoekstra have put together. The citations of Leviathan in my reply are to Richard Tuck’s 1996 edition for Cambridge University Press. I use the letter ‘L’ as an abbreviation of this work.

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Many scientists believe in God. At the same time, they leave their religious beliefs out of the scientific theories they construct and accept. Hobbes, in writing Leviathan, treated his religious beliefs in the same way. A central aim of the work was to advance scientific theories of morals and political society, and he sought, in constructing those theories, to keep them free of religious propositions. The work, however, has other aims. It is not one of pure science. Hobbes’s pursuit of these additional aims is sometimes intermixed with his scientific efforts. This feature of the work complicates its interpretation. My projects in interpreting Leviathan have been to extract from its text the philosophical theories of morals and political society that Hobbes presented. These are the same as what Hobbes regarded as scientific theories, for he did not distinguish between science and philosophy. And because one of his additional aims in writing Leviathan was to advance a new Christian theology, these projects have required determining whether one can interpret the work without having either to concede that some of Hobbes’s religious beliefs unwittingly and inextricably infect his philosophical theories or to give up the view that he meant to be constructing philosophical theories that were free of those beliefs. The interpretation I put forward in ‘Political Obligation’, if sound, shows that one can so interpret the work. And given its fidelity to Hobbes’s idea of science, it is, I argue, superior to competing interpretations on which Hobbes’s philosophical theories rest on premisses about God.

Professor Martinich writes, ‘Hobbes’s considered view [in Leviathan] is that the laws of nature are genuine laws and impose obligations because they are commanded by God.’ He takes my interpretation to contradict this statement. And it does, provided that one understands his statement to be about a view Hobbes included in his philosophical theories of morals and political society. If his statement is instead about a view Hobbes held on reflection or generally, a view that is part of Hobbes’s overall set of beliefs, then nothing in my interpretation contradicts this statement. Hobbes, for all I say, may well have believed that the laws of nature are genuine laws because he believed in God and believed that God promulgated them. What I deny is that he thought such beliefs belonged to a properly constructed philosophical theory. I deny, that is, that Hobbes thought such beliefs were part of the true sciences of morals and political society he saw himself as constructing.

I stress this point because of the importance to the method I use in interpreting Hobbes of the role of his idea of science. Hobbes defined science in chapter 5 as knowledge acquired by, first, giving apt definitions of the terms that are special to the branch of knowledge being developed, second, joining these terms together to make assertions, and then, third, drawing consequences from the assertions one has made either initially or by drawing them as consequences of the initial assertions. The definitions with which scientists begin ‘settl[e] the signification of their words’ (L, 28), and constancy in using these words with the significations the definitions assign them guarantees, if the definitions are apt, the truth of the initial assertions made from these definitions and of the consequences drawn from them. Someone who reasons without starting with definitions, Hobbes warned, or uses words with different significations from the ones the definitions he started with assign them ‘will find himself entangled in words, as a bird in lime-twigs, the more he struggles, the more belimed’ (ibid.). My method of interpreting Hobbes, then, is based on the assumption that he meant, in constructing his philosophical theories of morals and political society, to be conforming to his idea of science. Accordingly, I presume in interpreting him that with respect to each term for which he gave a definition that he used that term in the sense in which he had defined it. That is, I take each occurrence of the term to express that sense unless the text provides strong evidence that Hobbes was using the term in a different sense.

The interpretation of Hobbes that Martinich favors opposes my interpretation if it entails that Hobbes in Leviathan constructed a philosophical theory of morals on which the laws of nature are commands of God.  I will assume that it does. Such an interpretation faces, on my method, an immediate problem. Hobbes, in chapter 3 of Leviathan, declared that the human mind can form no idea of infinity and then concluded that we have no conception of God. ‘[T]he name of God is used not to make us conceive him’, Hobbes wrote, ‘(for he is Incomprehensible …)’ (L, 23). If we have no conception of God, then no apt definition of God can be given. The name, in other words, cannot be a term in any branch of science. Scholars like Martinich who interpret Hobbes as constructing in Leviathan a philosophical theory of morals on which the laws of nature are commands of God therefore have the burden of explaining how Hobbes could have in this case ignored his own caution against trying to acquire knowledge or develop a science without starting from apt definitions: ‘And in wrong or no Definitions, is the first abuse [of speech] from which proceed all false and senselesse Tenets’ (L, 28).

A related problem for the interpretation Martinich favors arises, on my method, from its implication that Hobbes took the laws of nature to be binding on men and women solely in virtue of their being God’s commands. I take Martinich to affirm this implication when, after stating that obligations have more than one source, he writes, ‘The laws of nature bind simply because God is a natural sovereign with irresistible power who promulgates them through reason.’ The implication, however, does not square with the definition of being obliged or bound that Hobbes gave in chapter 14. Hobbes there said that to be obliged or bound to φ is to have laid down one’s right not to φ by either renouncing the right or transferring it to another or others. Such renunciation or transference consists in one’s saying or doing something that signifies this alienation of the right. Since Leviathan contains no other definition of being obliged or bound, this definition must apply to any obligation that results from one’s being the recipient of someone’s commands. Accordingly, one cannot be obliged or bound merely by being such a recipient. Hence, on the assumption that Hobbes adhered to his program for constructing a true science, laying down one’s right by renouncing it or transferring it is the only source of obligation he allowed. No one, therefore, is bound to obey anyone’s commands merely in virtue of the latter’s addressing commands to him or her. Defenders of interpretations that attribute to Hobbes the view that the laws of nature are binding on men and women solely in virtue of being commands of God thus bear the burden of explaining how Hobbes could have ignored his definition of being obliged or bound in this case.

The upshot of these and similar problems for such interpretations is that their defenders must somehow show that Hobbes did not reliably adhere to his program for constructing a true science, that his adherence to the program was erratic at best. Martinich, for one, thinks Hobbes’s adherence to his program was erratic. Expressly disagreeing with me on this point, he writes, ‘[O]ne problem is that Hobbes’s practice does not always conform to his official method. He does not invariably deduce conclusions from definitions although terms that have been defined may occur in the premises.’ Unfortunately, Martinich gives no examples supporting this claim about Hobbes that do not beg the question. The examples he does give presuppose the very interpretation of Hobbes that I reject. Still, let us take Martinich’s treatment of Hobbes’s definition of a law of nature as a test of whether Hobbes reliably adhered to his program.

According to this definition, a law of nature is a precept that is found out by reason and that forbids self-destructive action. A law of nature, therefore, need not be a law. Hobbes expressly affirmed this consequence of the definition in the last paragraph of chapter 15 and then again near the beginning of chapter 26, where he wrote, ‘For the Lawes of Nature . . . in the condition of mere Nature (as I have said before in the end of the 15th Chapter,) are not properly Lawes …’ (L, 185). Even if we grant the oddity Martinich observes in how Hobbes formulated the point in chapter 15 that the laws of nature need not be laws, Hobbes’s formulation of the same point in chapter 26 contains no such oddity. Indeed, it clarifies his meaning: men and women in their natural condition can discover the laws of nature by using reason, but in that condition the precepts they discover are not properly laws since nothing about the natural condition of men and women implies that they believe that these precepts were commanded by anyone including God. And if they have no such belief, then there is no basis, given Hobbes’s definition of law as a command issued by someone whom its addressees are formerly obliged to obey, for these precepts to be laws. One cannot, after all, be obliged to obey someone unless one has transferred some portion of one’s right of nature to him or her, and such a transference entails a belief that the transferee exists.

Martinich denies that Hobbes meant to be affirming this consequence of his definition of a law of nature when he remarked at the end of Chapter 15 on the impropriety of calling the laws of nature he had previously expounded laws. If Hobbes had thought of them merely as dictates of reason—which is how he characterized them when he said they were improperly called laws—he would not, Martinich argues, have used ‘law of nature’ as a general name for them. To the contrary, Martinich maintains, Hobbes’s use of this name to denote a dictate that one knows through reason signals that he took such a dictate to be a kind of law. Otherwise one would have to read him as treating ‘law of nature’ as a made up expression to whose meaning ‘law’ made no more contribution than ‘man’ makes to the meaning of the expression ‘man-of-war’. Hobbes, therefore, according to Martinich, meant the laws of nature to be understood as a kind of law, and since, despite sometimes describing reason as dictating actions, Hobbes did not think it made sense to take reason as having authority over its possessor, he must have taken the authority of the laws of nature to derive from some other source than reason. God, Martinich concludes, must then be the source of the laws’ authority. Their being commands of God is ‘a better explanation [of their authority] than anything else Hobbes had available.’

Martinich’s argument, however, is based on a false dichotomy. It assumes that Hobbes took the laws of nature to be either mere dictates of reason and therefore not laws or commands of God and therefore laws. There is, however, a third possibility, which Martinich misses and which squares better with the text. It is that Hobbes took the laws of nature to be in some contexts mere dictates of reason and in other contexts genuine laws. He took them to be mere dictates of reason in the context of human beings in their natural condition and took them to be genuine laws in the context of a commonwealth. Thus the passage from chapter 26 that I previously quoted continues, ‘When a Common-wealth is once settled, then are [the laws of nature] actually Lawes, and not before; as being then the commands of the Common-wealth and therefore also the Civll Lawes’ (L, 185). On this interpretation, Hobbes understands the expression ‘law of nature’ to denote genuine laws when one uses it in the context of a commonwealth to refer to precepts that fall under its definition. Those precepts are part of the commonwealth’s civil law. They are, Hobbes declared, the unwritten law of the commonwealth and are thus known not by any act of publication but by reason. One attributes them to the will of the sovereign, who is representative of the commonwealth, by virtue of their being dictates of the sovereign’s reason.

Hobbes divided the civil law of every commonwealth into its positive law, which is peculiar to each commonwealth, and natural law, which is law in every commonwealth. This division, which corresponds to Hobbes’s distinction between written or published law and unwritten law, is fundamental to his jurisprudence. In particular, he relied on it for his criticism of the jurisprudence of lawyers who defended the English common law, Sir Edward Coke, above all. On Coke’s jurisprudence, cases decided by English courts set precedents that subsequent court decisions follow in like cases. These precedents are therefore sources of law, and they have such controlling authority by virtue of the English constitution from which the authority of the courts that produce them derives. Laws based on precedents are thus, in Coke’s view, independent of the sovereign’s commands. Hobbes fiercely opposed this doctrine of precedent as a basis of law. Judges, he argued, should follow reason and not precedent. Their following precedent merely compounds error whenever the case they follow as a precedent was wrongly decided. They avoid compounding the past error of a court by following reason instead, and judges follow reason in deciding cases, Hobbes maintained, when they follow the sovereign’s reason, which is to say, when they apply the dictates of reason that the natural law comprises. These include the nineteen laws of nature Hobbes expounded in chapters 14 and 15, and he singled out the eleventh law, the law of equity, as an especially important law for judges to follow if they are to make sound decisions in the cases before them. In short, the laws of nature have, on Hobbes’s account of sound judicial reasoning, the role that precedent has on the account of such reasoning that the defenders of common law advanced.

Plainly, then, Hobbes had good reason to use the expression ‘law of nature’ as he did, despite its denoting precepts that fail, in the condition of mere nature, to be laws. For the precepts it denotes are laws when they are placed in the context of a commonwealth. Specifically, they are the commonwealth’s unwritten laws, which in virtue of being dictates of reason give direction to public ministers, judges especially, when, owing to the absence of explicit instructions from the sovereign, these ministers must use their judgment in deciding how to exercise their office (see L, 188). Judges, in following these dictates, are understood to be applying the civil law of their commonwealth, and consequently their decisions are based in its laws. At the same time, because they are dictates of reason, these unwritten laws exist independently of a commonwealth. By contrast to positive law, there is no point in time at which they are brought into existence by legislation. Rather, as Hobbes liked to say, they are eternal. It makes sense, then, for Hobbes to have used a name for these unwritten laws that marked them as distinct from a commonwealth’s positive law and that also applies to them in circumstances in which there is no commonwealth and thus they are not properly laws. That such a name includes the word ‘law’ as its primary vehicle of reference serves then to highlight the distinction between the laws to which it refers and positive law.

Finally, when I wrote that the definition of a term that is formed by joining together two names preempts the definition of either name whenever that name occurs as a component of the newly defined term, I meant that one must use the definition of that term to understand its meaning and refrain from using either definition of its component names to understand it whenever using the latter gives the term a different meaning. In saying this I did not mean to imply that either name, in its occurrence as a component of the term, automatically ceases to have the meaning that its own definition gives it. It ceases to have that meaning if the definition of the term in which it occurs as a component does not contain it or its definition. Hobbes’s definition of ‘law of nature’ illustrates this possibility, for it contains neither the word ‘law’ nor the definition Hobbes later gave to the word, namely, command by someone addressed to another formerly obliged to obey the former. By contrast, Hobbes’s definition of ‘right of nature’ contains his definition of ‘right’, namely, liberty to do or forbear. He defines ‘right of nature’ as ‘the Liberty each man hath, to use his power … for the preservation of his own nature’ (L, 91). In this case, ‘right’ retains the meaning it has according to the definition of it Hobbes gave when it occurs as a component of the term ‘right of nature’. Similar points then apply to the other two examples of multi-component terms that Martinich thinks present problems for my account, ‘commonwealth by acquisition’ and ‘civil law’. Generally, on my account of Hobbes’s definitions of such terms, whether any of their component names ceases, when it occurs as a component of such a term, to have the meaning it has in virtue of a definition Hobbes gave of it depends on whether the definition Hobbes gave of the term of which it is a component contains or fails to contain it or its definition.

Martinich and I disagree on how Hobbes understood what he called ‘the liberty of subjects’. Martinich takes Hobbes to have understood the liberty of subjects to be a kind of liberty. Accordingly, on Martinich’s view, it is distinct from natural or corporeal liberty. That is, natural or corporal liberty is a different kind of liberty from civil liberty. What distinguishes the liberty of subjects from natural liberty, according to Martinich, is the kind of external impediment whose absence constitutes the liberty. In the former case it is the absence of laws governing a certain action that creates the liberty of subjects with respect to that action. In other words, such laws, if they existed, would be, on Martinich’s view, external impediments to a man’s or woman’s doing that action. As against this view, I take Hobbes to have understood the liberty of subjects with respect to a given action to be a condition of freedom from laws that govern such action, but because Hobbes did not regard laws as external impediments, he denied that the existence of those laws deprived people of liberty to do the action. In other words, on my view, Hobbes denied that the liberty of subjects was a kind of liberty. The term, I contend, is a second example of Hobbes’s using definition of a multi-component term to preempt taking one of the term’s component names as having the same meaning as it has when it occurs apart from this multi-component term.

The text, I believe, supports my view. Hobbes first gave his definition of liberty as ‘the absence of external Impediments’ in chapter 14. Later, at the beginning of chapter 21, he restated it as ‘the absence of Opposition’, which he immediately clarified by saying that he meant by opposition ‘external Impediments of motion’ (L, 145). He then further clarified his meaning by observing that the term ‘liberty’ applies to anything, inanimate or animate, that moves, since such things can encounter bodies that block their paths and, when they do, they may be said not to have the liberty to go further. Two paragraphs later Hobbes considered actions done out of fear and whether their agents are at liberty to do or forbear from those actions. His examples were a sailor’s tossing cargo overboard during a storm at sea out of fear of sinking and a man’s paying his debts under the threat of imprisonment if he defaults. In neither example, Hobbes observed, does the agent lack the liberty to do or forbear from what he does. His point is clear: dangerous circumstances do not by virtue of being dangerous or arousing fear present external impediments of motion. Commenting on the debtor’s action, Hobbes wrote, ‘[B]ecause no body hindered him from detaining, [it] was the action of a man at liberty’ (L, 146). He then applied this point to laws, ‘And generally all actions which men doe in Common-wealths, for feare of the law, are actions, which the doers had liberty to omit’ (ibid.). Laws, therefore, on the view Hobbes set out at the beginning of chapter 21, are not external impediments of motion. Their absence does not expand the liberty of those subject to them. And while he characterized civil laws as artificial chains, he qualified his characterization by adding in reference to civil laws, ‘These Bonds in their own nature but weak, may neverthelesse be made to hold, by the danger, though not by the difficulty of breaking them’ (L, 147). Hence, the liberty of subjects is not a kind of liberty.

Hobbes, I submit, adhered more reliably to his program for constructing a true science of morals and political society than Martinich’s interpretation can allow. For this reason, Hobbes is best interpreted as constructing a philosophical theory of morals and political society on which the laws of nature need not be genuine laws.