Limiting Leviathan: an Advice Book for Rulers?Larry May on Thomas Hobbes*

1

Limiting Leviathan: an Advice Book for Rulers?Larry May on Thomas Hobbes*

Gabriella Slomp

University of St Andrews

*This is a pre-print of an article published in Social Theory and Practice. The definitive publisher-authenticated version [volume 41, no 1, January 2015, pp. 149-63] is available online at: [DOI: 10.5840/soctheorpract20154117]

Every year thousands upon thousandsof tourists visit Hobbesbury, the global village founded in honour of the seventeenthcenturyEnglish philosopher Thomas Hobbes. Like any self-respecting destination, Hobbesbury operates an open-top tour bus whose itinerary includes all the unmissable sights:Strauss Strasse, Oakeshott Way, Watkins Institute of Science, Martinich Observatory, Skinner Tower, Springborg Cathedral,Pateman Women’s Institute, Gauthier & Hampton Contract Companies, MacPherson Old Market, Dietz’ Citizens Advice Bureau,Tuck Foreign Office, Lloyd Moral Institute, Sorell Urgent Care Centre, Gert Ministry of Peace,Hoekstra’s Athenaeum, and the Bibliotheca Malcolmiana. The aim of this essay is to recommendan additional stop on the tour, at a new building in the heart of the village, opposite Bobbio’sNotary Practice: Larry May’s Chancery Court. It is a sober and minimalist construction, I will argue, with a wealth of inconspicuous windows that offer novel views on the town’s most secret gardens.

1. Hobbes’s Legal Theory: a Gap to fill, or a Key to unlockhis Political Theory?

Writing in 2005, Claire Finkelstein introduced her important collectionHobbes on Law thus: ‘Thomas Hobbes has been studied almost exclusively for his political theory (…) [T]he success of Hobbes’s political philosophy has had an unfortunate corollary, namely that his legal theory has attracted comparatively little attention’[1]. Theultimate motivation of Finkelstein’s collection is the ‘hope of sparking greater interest’ inHobbes’s legal reasoning.The Clarendon edition of the Dialogue between a Philosopher and a Studentof the Common Laws of England,edited by Quentin Skinner and Alan Cromartie, also appeared in 2005. Cromartie’s Introduction offered novel insights into Hobbes’s views on law and urged further reflections on Hobbes’s legal theory[2].In spite of these significantattempts to draw attention to the legal theory of Thomas Hobbes, nothing much happened on this front until2012when a noteworthy collection of articles on Hobbes and The Law,edited by David Dyzenhaus and Thomas Poole, was published by Cambridge University Press[3]. Finally, in 2013, a whole monograph - to my knowledge the first in the English language - dedicated to the study of law in Hobbes’s system was published by Oxford University Press: Limiting Leviathan: Hobbes on Law and International Affairs by Larry May.

In the Introduction, May tells us that Limiting Leviathanseeks ‘to fill a gap in the literature’ (p. 1); later, however,he reveals the more ambitious aim of the work, namely that of showing how Hobbes’s legal theory ‘influenced’ hismoral and political philosophy (p. 20).Indeed, this bookdoes more than satisfy thereader’s curiosityor fill a lacuna in the secondary literature: the volume questions and inverts the traditional approach to Hobbes’s works;rather than making use ofHobbes’s moral and political philosophyto shed light on his understanding of law, May avails himself ofHobbes’slegal concepts to illuminate his political and moral argument.May’s change of perspectiveraises important questions both for Hobbes specialists and for a wider readership: can wefully understandHobbes’s political and moral philosophy without examiningthe central concepts of his legal theory? Indeed, can we afford to discuss present-day international legal issueswithout taking advantage of the insightsofone of the most powerful political minds in the western tradition?

May contendsthat if we examineHobbes’s textsin relation tocontextual legal debates, we can see that, far from being an illiberal absolutist,Hobbes advanced a notion of sovereignty that is limited to and conditional on the provision of salus populi.Hobbes’slaws of nature, according to May,indicate how salus populi can be attained and maintained. One law of nature in particular, namely the law of equity, imposeslimitations on law-making and legal justice. In Hobbes’s argumentMay finds concepts and views that anticipate those of Locke andLon Fuller.For May,Hobbes sets the stage for a contemporary defence of international law and the International Criminal Court,and presents one of most persuasive cases for minimal and universal rules governing conduct during war.

In the next five sections of this essayI examine May’smain argumentswithin the context of the secondary literature, and in so doing hope to demonstrate the novelty and distinctiveness of his position. In the final sectionI address the questionof why a consistent writer such as Hobbes made a number of prima facie inconsistent claims that give rise to readings of his political theory as different as the standard interpretation and May’s interpretation.I advance thehypothesisthat Hobbes’s political philosophy contains both ‘a theory of obligation for citizens’ and ‘an advice book for rulers’, and suggest that the standard readingencapsulatesthe former,whereas May’s interpretation captures the latter.I conclude that, whether we endorseMay’s interpretation in its entirety or only partially, his book on Limiting Leviathanwill changethe way we approach Hobbes’spolitical theory.

1. Bound or Unbound Leviathan? The social contract revisited.

Norberto Bobbioconveyed the standard interpretation of Hobbesian sovereignty when he described it as absolute, unlimited, unconditional, irrevocable, and indivisible[4]. Although still dominant, thisreading of Hobbeshas been contestedduring the last century by an increasingnumber of interpreterswho,for different reasons, have argued that Hobbes either failed or did not mean to deliver a theory of absolute sovereignty. These alternative interpretations have concentratedon variousaspects of Hobbes’s theory, but a major focus of attention has beenhisaccount ofthe social contract.May, too,examinesthe social contract in order to build his case for a limited Leviathan.To grasp the distinctiveness of his position it is perhaps helpful to compare it with thatof three famous writers who also contested the absoluteness of Hobbesiansovereignty by examining the generation of the Leviathan:Johann Gottlieb Fichte, Carl Schmitt, and Jean Hampton.

Fichte argued thata right that does not presuppose a law, but rather precedes all positive laws, is ein absolutes Recht; the acknowledgement of such aright undermines any attempt to construct a theory of absolute sovereignty by means of the social contract. From a Fichtian perspective, insofar as the natural right to self-preservation of the Hobbesian manprecedes the creation of the Leviathan,it imposes conditions on the sovereign power, which is therefore limited.

Carl Schmittarrived at Fichte’s conclusion by a different route[5]. Schmitt was a jurist and initially a great admirer of Hobbes’s concept of sovereignty.In particular, Schmitt praised Hobbes for having refined JeanBodin’s original conceptionand having identified that sovereignty’s essence lay in the protection/obedience principle:citizens obeythe sovereign power in order to be protected, and their obedience ends when protection is not forthcoming. Over time, however, Schmitt’s admiration for Hobbes waned. Debatestook place in continental Europe inthe Thirties as to whether or not Hobbes could be considered the founding father of authoritarianism; Schmitt’s diminished enthusiasm for Hobbes is manifest in Schmitt’sdenial of this paternity.Schmitt argued that Hobbes’sdiscourse on miracles implied the existence of a private domain beyond the state’s control; Schmittcontended thatthisdistinctionbetween forum internum and forum externum prevented Hobbesfrom deliveringa concept of absolute state sovereignty. Schmitt claimed that this‘barely visible crack’ in Hobbes’s theory ofsovereigntywould cause its collapse into the theory of Spinozaand of the liberal state[6].

In the Anglo-American literature,Jean Hamptonis a (perhaps the) leading example of an interpreter who argued that Hobbes failed to deliver a theory of absolute state sovereignty.Hampton provided an argument to showthat the conditions of the social contractallow substantive limits on the sovereign[7].

AlthoughMay does not engage with Hampton, Fichte or Schmitt explicitly,his argument contains an indirectresponse to all three.Whereas Fichte felt that the ‘individual right’ to self-preservation imposes limits onHobbesiansovereignty, May stresses that the ‘end’or goal of sovereignty, namely salus populi,imposesvarious limitations on the exercise of sovereignty.WhereasSchmitt claims that Hobbes attempted to formulatea theory ofthe absolute state yetunwittingly provided the foundations for a theory of the liberal state,May maintains that Hobbes’s very aim was to advance a state theory that would protect the survival,well-being, andlibertyof the people. Whereas Hampton regards Hobbes’s account of thegeneration and institution of the Leviathanas the Achilles’ heel of his theory of sovereignty,May contends that thesocial contractserves Hobbes’s aims well:Hobbes wanted to safeguardthe people,and the success of Hobbes’s notion of sovereignty has to be evaluated by that measure.

Like Otto Gierke, Maurice Goldsmith and Noel Malcolm before him,May claimsthat ‘Hobbes viewed the sovereign as having a third-party beneficiary status in respect to the contract made between each man and each man’(p. 52); unlike thesewriters, however, May unravels theimplications of this claim. Maymakes the case that Hobbes’s contract resembles that of Locke in having two parts(p. 56).

1. Bound or Unbound Leviathan? The laws of naturerevisited.

The interpreters who claim that Hobbes is not the champion of absolute state sovereignty have submitted various items into evidence for their case. If ‘Exhibit A’ is Hobbes’s social contract, then ‘Exhibits B’ are his laws of nature.While the standard interpretation takes these rulesto bemerely prudential, and discovered by instrumental rationality for the sake of self-preservation, alternative readingshave stressed thatutilitarian considerations alone cannot explain the specific content of these laws. The classical challenge to the standard interpretation of the laws of natureisthe so-called the Warrender-Taylor thesis (a moniker that glosses the very different understandings of the laws of nature put forward by A. E. Taylor and Howard Warrender )[8]. Over the last century, alternative interpretations of the laws of naturehave beenwide-ranging,and include deontologies, Christian readings,andvirtue ethics. All these alternative understandings of the laws of nature share one fundamental claim: genuine moral considerations are central toHobbes’spolitical theory.

Larry May’s position is distinctive.On the one hand,Mayendorses the standard reading of the laws of natureasprudential rules that rational agents discoverby reason; even the law that recommends to refrain from cruelty is grounded,according to May,onprudentialconsiderations(p. 207).On the other hand,unlike supporters of the standard reading,May suggests thatmorality plays an importantrole in Hobbes’s construction. He argues that in Hobbes’s argument,rather than giving source to conflicting claims,morality and utility reinforceoneanother.For example, for the law-maker, the pursuit of the well-being of the people, the commitment to fairness, and restraint from cruelty aremoral duties andprudential strategies.As we will see below, according to May, this‘blending’ of morality and utility is the hallmark of Hobbes’s theory(p. 209),and it makes forafaithful lens through which to view current concerns about the rules of war andrelations among states.

May regardsthe viewheld by Warrender, Taylor, Hood, andMartinich – that God plays a central role in Hobbes’s theory –as untenable especially when considering Hobbes’s later work(p. 118; see also footnote 31 on p30). With some qualifications, noted in the next section,May puts across the idea thatthe laws of nature impose mainly ‘procedural limitations’ on the legal system introduced by the Leviathan, and that in this respect Hobbes anticipates Lon Fuller(p. 121).

As well as addressing the fundamental law of nature that recommends the search for peace,May singles out and examines twoothernatural laws: the law of equity and the law against cruelty.The former is key to May’s interpretation of the limits onthe sovereign power as well as tohis discussion of international law;the latter plays a crucialrole in his treatment of the International Criminal Court and of jus in bello.

1. Equity and Justice

Although relatively few interpreters have seen in Hobbes a strict legal positivist[9], many supporters of the standard view emphasise Hobbes’s contention that citizens must obey the law not because it is fair, or reasonable, or beneficial, but because it is a command issued by the authorised law-givers. The standard view emphasises that the Leviathanis accountable only to God for his interpretation ofthe laws of nature (including the law of equity) and reminds us that, for Hobbes, ‘the only Bridle of the Kings of England, ought to be the fear of God’[10].

Therelationship between legal justice and the natural law of equity has been the focus of increasing attention[11], because Hobbes makes a number of puzzling statements (about equity, about the relationship between natural law and civil law, about right reason, about the treatment of the innocent, etc.)that are not easily accommodated within the standard interpretation.It is here thatMay’s contributions to the debate are particularly interesting.Maydoes not contestthe claim that the Hobbesian law-maker is the source of legal justice and can never actagainst justice, butnevertheless maintains that equity, as the primary law of reason, binds the law-maker (p. 81);the duty of the sovereign is to act for the good of the people and this underlies all legitimate law-making.For May, the sovereign is bound to obey the dictates of the natural law of equity ‘due to the structure of his sovereignty and authority’ (p. 119); in his view,equity imposessignificant limitations not only on the applicationandadministration of the law (as the standard interpretationholds), but also on law-making. Therefore,it is because of the role that Hobbes gives to equity that he does ‘not provid[e] the kind of positivist account of law that Austin and Bentham advocated’(p. 108). Hobbes ‘allowed the moral wedge of equity to be driven into his legal positivism’ (p. 83).Throughout the book,May maintainsthat ‘equity, not justice, is the dominant moral category in Hobbes’s political and legal philosophy’ (p. 67; see also p 20). This contention is the building block of his challenge to the standard reading of Hobbes’s legal theory.

May sketches the history of the concept of equityfrom Aristotle andRoman times to Tudor England; he showshow ‘equity came to be linked to procedural fairness’ (p. 69).He emphasises that the natural law of equity ‘is singled out and given higher status than the others when Hobbes discusses the duties of the sovereign’(p. 73). The reason for this, he explains,is that equity is unlike all other laws of nature insofar as it applies only to those men who are ‘trusted to judge between man and man’ (p. 73).May suggests that Hobbes’s argument for equity containsan appealto the morality of man (‘there aremoral limits on legitimate law-making’ (p. 81)) as well asto prudential considerations:‘when the sovereign does not treat the people fairly, sovereignty is weakened’ (p. 78).From May’s perspective, only an equity-bound Leviathancan deliver the end for which it was created: salus populi.

May argues that proper attention to the concept of equity enables us to tracethe development and refinement ofHobbes’s legal thought from the Elements of law to Leviathan andtheDialogue.May goes on to claim that, by concentrating on equity, we come to see that Hobbes imposedprocedural limits on law-making and moreoverconceived of some substantial limitations on what the law-maker can declare to be law: ‘law-makers are restricted from acts that threaten the safety of the people and thus violate the law-maker’s duty to provide security for the subjects who have sworn obedience to him’ (p. 83).

1. Fear of Punishmentand Fidelity to law

By the lights of the standard interpretation,Hobbes adhered to a deterrence theory of punishment:

Therefore before the names of Just and Unjust can have place, there must be some coercive Power to compell men equally to the performance of their Covenants, by the terror of some punishment, greater than the benefit they expect by the breach of their Covenant;[12]

May acknowledges Hobbes’ssuggestionthat the obligation to obey is based on fear; however, he argues that it takes more than fear of punishment to secure stable peace. Hobbes was aware of this:peace requires the habitual obedience of the citizenry andinvolves a positive moral attitude to and respect for the law.Habitual obedience, in turn, requires fidelity to law. May not only offers a compelling argument to show howa ‘strong concept of fidelity to law’(p. 125) ispart of Hobbes’s philosophy but also makes thecase that, even on this issue, Hobbes anticipatesLon Fuller (p. 122).May explains that fidelity to lawentails that citizens befaithful to the legal system in general without necessitating adherence to all laws in particular(p. 129). Hence Hobbes’s concept of fidelity to law is compatible with his provision forsome forms of disobedience (e.g. ‘self-defensive acts against the sovereign when such acts do not threaten the commonwealth itself’ (p. 134)). May argues that Hobbes condemned the type ofdisobedience that would threaten the legal order(p. 133)and saw the development of the habit of obedience asthe basis of civic virtue.