1.1 Degrees of Reason

When Hobbes refers to the laws of nature in Leviathan, he equivocates between two meanings—either the natural principles that guide the private actions of rational people or the unwritten positive laws that govern their public actions.Footnote ²⁰ The former reading is a holdover from On the Citizen, where the natural law was tied to the dictate of practical reason, a fallible capacity to handle truths related to what is required for survival.Footnote ²¹ In that previous work, the “legal” part of natural law owed to the mere fact that there is a standard of correctness which distinguishes right and wrong in such cases: “[W]e speak of an act as wrong because it is contrary to some law.”Footnote ²² In contrast, Leviathan required that law entail publicly accessible reasons for action, e.g., rules held in force by the sovereign.

One way of trying to explain the difference between natural “law” and the unwritten positive law is to talk about natural laws as descriptive and positive laws as evaluative.Footnote ²³ The descriptive reading gets some plausibility from the fact that Hobbes sometimes favored language which suggested the natural laws are mere qualities that produce dispositions to behave. In that sense, he suggests that the laws of nature in the state of nature “are not properly laws”.Footnote ²⁴ However, the descriptive reading is awkward, as Hobbes also uses the normative language of “right” and “virtue” in connection with these natural characteristics, and these both imply standards for correct (or best) rational action, even if they fall short of having peremptory force.

Here is how we might split the difference. We may say that Hobbes’s view implies a prudential deontology which is composed of reasons for action and locate the goodness of the reasons on a spectrum. On the one end of the continuum, reasons are prima facie reasons (necessarily take on the form of being reasons for action); on the other end are ultima facie reasons (decisively sufficient to direct action, thus having the peremptory force of a genuine imperative). In between the two are pro tanto (minimally but defeasibly good) reasons for action. Natural obligations are at least prima facie reasons for action, and usually do not go beyond pro tanto status. Yet moral and legal reasons are and must be ultima facie reasons, and are only morally and legally binding in the context where a sovereign is in power. Hence: “For though [the desire for procuring and maintaining peace] be naturally reasonable, yet it is by the sovereign power that it is law; otherwise, it were a great error to call the laws of nature unwritten law”.Footnote ²⁵ At best, we can say that prima facie reasons for action reflect our legal interests, but this is not to say anything about whether or not they bind the courts.

Robert Ladenson provides a different reading of Hobbesian jurisprudence. In his view, the law implies that the sovereign’s “right to rule” is a justification-right, i.e., does not imply correlative duties of a population to obey the dictates of their rulers.Footnote ²⁶ Yet that reading departs significantly from Hobbes, who explains the powers of the current sovereign by reference to the original “contractual” acquiescence.Footnote ²⁷ Ostensibly, that original contract entailed and required both common subjection (i.e., transfer of powers) and entailed a joint obligation to obey the sovereign.Footnote ²⁸ If there is a mere “justification-right” in Hobbesian legal theory, it is exercised on behalf of citizens towards their sovereign, i.e., the citizen’s right to be ruled justly, since the sovereign has no legal obligation to satisfy any such right. But this is just to flip Ladenson’s interpretation on its head.

The power of the “rights-based” reading is the realization that, intuitively, a ruler sometimes seems unworthy of civil obedience. Yet, Hobbes’s prima facie natural duties have a vexed relationship with the moral status of the laws. For him, justice is only possible in the context of the commonwealth. And the verdicts of the courts only sometimes seem to be just.Footnote ²⁹ That said, the law is always necessary (and, on some readings, sufficient) to meet the actual demands of justice: “For… nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice, or injury”.Footnote ³⁰ Civil obedience is genuinely prudentially required, except in cases where one’s individual life is put in jeopardy by sovereign persecution. But even here, one’s flight from justice would be prudential, not moral, because it concerns only the individual.

Natural rights are normative, not legal, while unwritten laws are both normative and law. For Hobbes, the difference between unwritten civil laws and natural “laws” can be understood by taking note of the difference between the authorship of a rule and the authority whose approval makes the rule legal. Natural virtues or ordinances of prima facie reason are natural in their genesis because they are authored and displayed independently from any sovereign office. They are also natural because they are the sorts of precepts of reason that are apt to be thrown to the winds when passions take hold. In contrast, unwritten laws are ultima facie reasons, deriving their legal authority from the sovereign, even though they are authored by the population of reasonable people. So, he says, “every subject is by this institution author of all the actions, and judgments of the sovereign instituted”.Footnote ³¹ Both contrast with written laws, which are both authored and authorized by the sovereign office.

In summary, Hobbes’s talk about “natural law” is fraught with ambiguity, as he mixes descriptive and normative articulations of those norms. One way of resolving the ambiguity is to say that his account of the laws of nature is merely descriptive, but this seems untenable. Another way of resolving the equivocation is to say that the right to rule is a justification-right, which implies that subjects have no duties to obey the sovereign, which is surely false for Hobbes. It is better to say that he thinks natural laws are normative guides to action for subjects (i.e., norms of deference), but possess a less significant force, being merely prima facie reasons. Meanwhile, the demands of justice and law have the force of ultima facie reasons. By taking this view, we can say that there is no sense in which the sovereign’s right to rule fails to be realized in subjects’ collective obligation to trust the rulers, and also to say that on those occasions where the sovereign has murderous designs, the person has no duty to obey the sovereign.Footnote ³² It is most productive to think of the difference between Hobbesian natural “law” and unwritten positive law as a difference in authorship, though only the unwritten positive laws have authority in the context of a commonwealth since only they have the status of ultima facie reasons for collective action.Footnote ³³ These ultima facie or peremptory prudential reasons are binding on the actions of a collective, and nothing less than ultima facie duties can make law possible.

1.2 Models, Myths, And TheoriesFootnote ³⁴

There are two essential concepts at the roots of the Leviathan—the idea of a social contract and the idea of the state of nature. Both have an explanatory role in his theory. However, neither are quite what they seem. The contract is best interpreted as a “pseudo-contract”, and the state of nature thought-experiment is a model, not myth or theory.Footnote ³⁵

The contents of the original covenant potentially diverge from the present sovereign’s will. For instance, as a premise in his defense of the tenth law (modesty), Hobbes thinks it is unreasonable to suppose that anyone would ever divest themselves of an equitable claim to resources when entering into the original contract (like self-control, air, water, etc).Footnote ³⁶ All the same, by right of transfer, it is legally possible for the sovereign office to squander a body of natural resources in practice, even if a collective right to those resources were ostensibly retained by subjects in theory. The original contract might have had clauses and exceptions (so to speak), but the sovereign decides which clauses have sufficient normative force to be ultimately legally binding.

Barring the exception of political revolution, there are no externally imposed limits to the legal powers of the sovereign office. There are two reasons for the broad and expansive authority of the office. First, the sovereign has never made an agreement with the people, i.e., a covenant that spells out the limits of the powers of the rulers.Footnote ³⁷ The sovereign functions as an external arbiter brought in by a contract between subjects and subjects. If the sovereign had ever been in a contract with the subjects—say, a contract to govern impartially, or not to usurp a particular body of resources—then it would follow that the sovereign could be legitimately usurped or ignored. Hobbes rejects this possibility with full force. Second, the nature of the contract between all and all does not, and cannot, place any effective constitutive limits on the powers of the sovereign. After all, both the contract and the office of the sovereign is preserved even after conquest or revolution.Footnote ³⁸ Such unusual chains of succession could “renegotiate” any supposed provisos built into the original agreement.

Insofar as there is a divergence between the original contract and the present sovereign office, it is the will of the present sovereign that constitutes the commonwealth. In this sense, for Hobbes, there are no strict legal rules for succession. The absence of rules of change is one major difference between Hobbesian and Hartian legal theory.Footnote ³⁹ The only limits on sovereign power are self-imposed limits reflecting the prudential duties of the sovereign to herself.Footnote ⁴⁰ For Hobbes, the sovereign’s legal powers stretch just as far as their political ones. In that sense, the idea that a present sovereign might make a decision ultra vires is implausible at best.Footnote ⁴¹

Hobbes explains the genesis of state and its legitimacy in terms of a “contract” or “covenant”. The “contract” functions in Hobbes’s account to gesture at the face-value reasons that subjects have to trust their rulers. Hobbes thought that the reasons for trust bottomed out in the consent of the governed. But he made use of the notion of consent in a rather expansive sense, in the state of nature: e.g., to include consent under duress.Footnote ⁴² Since the original contract occurs in (and takes one out of) the state of nature, it follows that coercion could have been used to compel subjection to it beforehand. Moreover, that original covenant does not need to be unanimous.Footnote ⁴³ Thus, by implication, the original “contract” could be the coercion of a majority by the minority.

Since most of us think that contractual agreements to act are a different kind of thing from coercion to act, we might disagree that Hobbesian theory was “contractualist”. Moreover, the contract can spell doom to a population through the mismanagement of natural resources, and still not be voided (except once the population dies). To emphasize the normative salience of his unusual conception of the social contract, I refer to it as a “pseudo-contract”.

Hobbes’s pseudo-contract occurs as a reaction to the state of nature. Ostensibly, in their natural condition, human actors are disposed to act in certain ways. They are born equal in their potential powers, because each person potentially possesses comparative advantages and disadvantages. These comparative (dis-)advantages mean that everyone is at equal risk of hardship in a competition for resources. Where there is equal hope in securing resources, conflict arises. Such battles need not be at the level of full-scale dramatic engagements—the point is that all can be expected to prefer to engage in conflict than to cooperate.Footnote ⁴⁴

Hobbes thinks that the “state of nature” helps to explain the law, but what kind of role does the state of nature thought experiment have in his explanation? If we were to ask Hobbes, he would likely say that the state of nature postulate is a theorem which has definite signification and draw analogies to the geometers.Footnote ⁴⁵ But I would like to say that the state of nature is better understood as a practical model as opposed to a scientific theory or a political myth. Scientific theories are either deductive consequences of axioms or well-supported empirical hypotheses and thereby held as true. Myths compel us into taking actions which serve the interests of the myth-maker and their ideology while making no justifiable claim to being grounded in historical facts and held as true.Footnote ⁴⁶ Both contrast with models, which are abstract descriptions of (potentially idealized) cases, constructed around the analysis of a limited and well-defined set of relationships, usually grounded in observations that are most salient only to particular kinds of jurisdiction, and sometimes used in order to reason in practice about general facts (e.g., in ethnocentric fashion).Footnote ⁴⁷ Unlike myths or theories, models do not even pretend to be either true or false when used in the context of the general study of phenomena—they are only better or worse, useful or useless. This distinction is important to make since models are productive in science, and hence fit best with Hobbes’s social-scientific aspirations, without erroneously relying upon strict correspondence with historical reality. Models bear on the facts without necessarily corresponding to them.

It is not clear how the state of nature model is grounded in plain facts which held as a generalization. For one thing, by his own admission, Hobbes does not seem to believe that there was ever a uniform state of war between all parties at all times. Nor is there much textual evidence that Hobbes aspired to be rigorous in his task as a historian. Yet Hobbes believes that the state of nature model is partly recommended by factual-historical considerations: a) from an inference about the past that is based on observations of civil war; b) by second-hand observation of some pre-agricultural societies living in the Americas; and, (c) observation of war between nations.Footnote ⁴⁸ But (a) is a retrodiction, not evidence; (b) is a particular case, hence at best it is imperfect inspiration for the “state of nature” model, not as a proper generalization; and (c) is strictly irrelevant to a discussion of intra-state law.

Since the state of nature postulate is ostensibly based on evidence, and it generates a space of practical reasons that make a justifiable difference to how we act, it isn’t a political myth. Yet it is plausible to say that the evidence is insufficient to direct those consequences, and inappropriate to call the state of nature “true”. So, it is best to conclude that it is a model whose aim is to spell out the facts about what you can reasonably expect in the absence of sovereign governance.Footnote ⁴⁹

2.1 Post-Classical-Natural Law

For the natural lawyer, the eternal, divine, animal, and natural aspects of law provide an account of the prudential bindingness of civil law. Such theorists should be disappointed by Hobbes’s approach to the study of religion and civil law for two reasons. First, because Hobbes’s discussion of religion is framed in terms of a discussion of pre-civil society, i.e., the state of nature, it does not bear directly on civil law. Second, Hobbes believes that the state has its own unique kind of sublime aura that is distinctive from that of the divine order. This treats the sovereign “mortal god” as relatively modular, in contrast with Aquinas, who places God at the top of the deferential chain.

Hobbes had mixed feelings about religion. On the one hand, he is against the rule of superstition over our lives, and believes that religion is largely a response to the handicaps in human cognition that we usually associate with superstition: i.e., our proclivity to anthropomorphize, to be ignorant of secondary causes, to revere things that are feared, and our carelessness about making predictions. That explains why many believe that humans are made in God’s image.Footnote ⁵⁷ These remarks are decidedly unsympathetic to treating the state of nature or pseudo-contract as political myths. But we should also not overstate Hobbes’s skepticism towards religion. He suggests that there are two kinds of religion: the true and false (i.e., “divine politics” and “human politics”). Both are about control and obedience—even true religion involves a degree of regimentation. Yet true religion is about securing obedience to divine command, while false religion is about securing obedience by using God’s name in vain.Footnote ⁵⁸ Acknowledging the reality of true religion allows Hobbes to avoid the accusation that he is an unbeliever and its subsequent historical stigma. So, it is only in the discussion of true religion that we can see Hobbes as sympathetic to political mythology. And even so, he generally placed religion in the theoretical background.

Another difference between Hobbes and Aquinas is that Aquinas’s divine laws are presided over by charismatic personalities like Moses, Abraham, and Christ.Footnote ⁵⁹ But for Hobbes there was no original covenant, where (e.g.) subjects transferred their rights to empower Christ. Unlike the sovereign, charismatic religious personalities do not, or need not, take on the airs of civil arbitrators. In such cases, the sovereign arbiter is God, and these are His representatives.Footnote ⁶⁰ Instead, subjects defer to these divine representatives because they have a reputation for holiness: through wisdom, sincerity, and love.Footnote ⁶¹ Such persons can exist in the state of nature (in the state of perpetual struggle), but for Hobbes, these figures cannot be expected to bring the state of mutual war to an end.

Natural law theory accounts for the validity of laws in terms of moral obligations. This is a more promising area in which we might think of Hobbes as a natural lawyer since, for Hobbes, justice presupposes peace in a civil order. Yet for Hobbes, justice is a condition that only occurs in civil society, and it is not a property of mere deliberation or personal virtue (any more than it is something that we find among nonhuman animals).Footnote ⁶² This contrasts with Aquinas, for whom justice was the perpetual will to do right to everyone, and hence a virtue.Footnote ⁶³

This picture of justice as inextricably communal leaves a large gap in the Hobbesian worldview. We might reasonably ask: what about people who seem to be obeying moral rules in the state of nature; aren’t they moral? For example, consider the negative formulation of the Golden Rule: Do not do unto others as you would not have them do unto you.Footnote ⁶⁴ We might ask, can’t people obey the golden rule in the state of nature, and if so, aren’t they moral agents? And it has to be emphasized that Hobbes says no. He denies that such actors would be agents of justice, though they surely may appear to be just. The reason is that justice must bind both internally and externally (in foro interno and in foro externo), meaning the rules of justice provide reasons for action through their role in shaping a working system of incentives and impediments which are both intrinsically and extrinsically motivating.Footnote ⁶⁵ Since the principles of nature are only binding internally in the state of nature, and not always externally, they are not laws. At best, the principles only appear to be laws.

Most of what Hobbes calls “the maxims of nature” coherently abide by the description he chose for them.Footnote ⁶⁶ These principles lay the foundations for Hobbes’s theory of the state, and they are lexically ordered; so, principles 3-17 are supposed to be derived from principles 1-2, or solicitude and transfer. They precondition a population to consent to a social contract but are not themselves determined by social sources, and in that sense harken back to classic depictions of natural law.

Most of the latter maxims are not strong enough to play any constitutive role in the practice of law. They cannot do that kind of work, being mostly general and fallible descriptions of how people are liable to act. But some are also normative, in the sense of providing people with reasons for action—even being essential to such varied operations in government as the interpretation of statutes and a criterion for legality of the common law.Footnote ⁶⁷ They are mainly normative in the sense of being usually a source for appropriate kinds of reasons—albeit with the exception of the governmental requirement to hear evidence, which we will discuss in §3.Footnote ⁶⁸

The sovereign shall always seem to be the bearer of justice. The natural principles provide us with a myopic view of what the agents of law look like. But the actual law may be something else—ostensibly grounded in the natural principles, but with comprehensive discretion allotted to the sovereign to fashion practical meaning out of the principles. Which is just to say that the rights of nature are ultimately dependent upon their application in the domain of social fact, and that is where moral reality is to be found.

In conclusion, Hobbes thinks that our obligation to obey the law is, in the first instance, a matter of collective prudence. Obligations from religion and justice have a secondary role in his theory. Religion’s role is mainly in pre-civil society, i.e., the state of nature. It is doubtful that he would treat the state of nature or social contract as political myths, preferring to regard appeals to religion in those terms. Yet there is significant overlap between natural law and Hobbesian theory. For Hobbes has the resources to concede that charismatic religious personalities are good enough to produce a temporary peace, though he denies that such peace may endure.

2.2. Proto-Positivism

We usually attribute two theses to the family of doctrines known as legal positivism. They are that a) the authority of law derives from its sources; b) that law is not necessarily a moral venture.Footnote ⁶⁹ Different accounts place different emphases on one thesis or another depending on the theorists under examination.Footnote ⁷⁰ But we will concentrate on the sources thesis since it is the most distinctive.

The sources thesis informs us that all valid legal claims are grounded in a state of society, not in the merits of the system.Footnote ⁷¹ To say the same thing, every flavor of legal positivist believes that legal validity is forged in foro externo, as the “ought” of law is grounded in the “is” of one narrowly conceived kind of public reason, e.g., patterns of compliance to an independent power. For the positivist, there is no legal point in appealing to any deeper reasons for compliance. Once our spade uncovers the social contract or its equivalent, one hits the bedrock of legal theory.

Hobbes does not believe that social sources are sufficient to establish legal validity. But it is not obvious how the Hobbesian jurisprudence could substantially resist the reduction to positivism. That is to say, it is not obvious what explanatory or normative stakes are involved in denying the sufficiency of sources. What is it that we think we have irredeemably lost when we transition from Hobbes to soft positivists like Hart or Kelsen?

The answer turns on how broad-minded we have to be when thinking about the legal requirements for maintaining the stability of government. Hart accounted for the stability of law in terms of constitutive selection criteria which he called rules of change. Hart identified these secondary rules in terms of the practices of governmental officials (primarily the courts). So, these rules could potentially disqualify an illegitimate aspirant of the highest government office from being recognized as “sovereign” during periods of interregnum.Footnote ⁷² A government is stable in case the norms of the judicial culture remain intact. Hobbes, in contrast, was less concerned with the individual occupant of the sovereign office as he was in making sure that sufficient civil peace existed to preserve any identifiable office at all. For Hart, the law could still exist even during a period of civil strife, just in case there was a sufficiently coherent practice observed in the besieged government. For Hobbes, in contrast, civil strife erodes and destroys the sovereign office through the dissolution of the commonwealth. Hobbes’s broad-minded conception of stability is public, in the sense of being a union of reasons binding in foro interno and in foro externo.

Now, to be sure, one might wonder how such differences of opinion concerning the nature of stability convey a sense in which Hobbes is doing a better job at providing public reasons. Indeed, Hobbes was sometimes utterly unclear about how the public could identify the sovereign office, and sometimes said it would simply be supposed.Footnote ⁷³ Even so, Hobbes does identify two qualities of the sovereign which are open to public view. First, the sovereign is characterized by their prudential function, which is to act as the steward of the commonwealth.Footnote ⁷⁴ Second, a sovereign must have the powers to determine who counts as respectable in a society, best deserving of honors and offices.Footnote ⁷⁵ These two qualities, together, form the basis of rules of identification which are not present in Hart.Footnote ⁷⁶

First, the sovereign is charged with self-care, and their duties to self-care are weighty prudential but extra-legal obligations to preserve the state of the commonwealth. Thus, much of Hobbes’s attention was devoted to statecraft, articulating the legal interests of the sovereign without attributing to them any legal duties or infirmities. That advice ran the gamut, addressing the issues of distributive justice to domestic and foreign policy.Footnote ⁷⁷ The general point was to aid the sovereign in its rule and to encourage the sovereign to allow the commonwealth to live up to its name. Most importantly, the sovereign must be wary of the possibility of an internal collapse of the state, either due to major dissonance (e.g., civil war) or minor ills (e.g., tax evasion, the ascendancy of corporations, populism, income inequality, expansionism).Footnote ⁷⁸

The strategies of sovereign self-care depend on the constitution of the office and practices related to succession. For Hobbes, there are three: aristocracy, democracy, and monarchy.Footnote ⁷⁹ Yet the only form of government that has a shot at having any stable rules of succession is the aristocracy, as democracy has no such rules, and monarchy faces special difficulties.Footnote ⁸⁰ Uncoincidentally, the importance of aristocracy to the law is related to the second quality of the sovereign power, which is the capacity to allocate honors, titles, and offices, along with norms of respect.Footnote ⁸¹

There are at least two reasons why we cannot say that these regulatory norms are akin to Hart’s secondary rules, i.e., where social sources are sufficient for the law. For one thing, though the rules refer to social phenomena (e.g., who has honors, who is in office), these references to social facts are not constitutive of the office of the sovereign, so much as they are guides in figuring out who occupies that office. For another thing, the office is constituted both in its teleological aims and in its social composition. The most forceful argument to that effect is that, during a period of succession, so long as there is an enduring civil peace, there may be multiple competing practices of recognition and change. In such circumstances, Hobbes is free to say that as a matter of law we are bound to extra-social criteria to determine the occupant of the sovereign office. If we happen to be in a civil state that enjoys a uniform practice of recognition and change, then that is all well and good. But there is no reason why the fate of law must be tied to such an assumption, so long as there is a civil peace. Respectable disagreements about the constitutive norms of law need not be fatal to the office of the sovereign so long as practical expediencies can be identified and deployed.

To conclude, Hobbes himself does not believe that social sources are sufficient to establish the terms of legal validity, but how does he resist a reduction? The answer depends on how we think about the legal requirements for maintaining the stability of law. Hart accounted for the stability of law by identifying it in terms of rules of change recognized within the legal culture (especially, the judiciary), while Hobbes identified it in the fact of stability of government in general. The practical slant to the Hobbesian theory explains Hobbes’s curious emphasis on the sovereign’s obligations of self-care: these rules are what it takes to maintain the orderly government in fact and to maintain conditions of government where subjects can identify orderly governance.

The prudential point of view implies that constitutive questions about who counts as sovereign are inextricably tied to questions about how subjects can identify—and be held in thrall by—the sovereign office. Hobbes proposes a few solutions. First, the sovereign could be characterized by their prudential function, which is to act as the steward of the common order in the role of final arbiter. Second, a sovereign must have the powers to determine who counts as respectable in a society, best deserving of honors and offices, and who give a populace counsel about orderly and respectable behavior—in effect, acting as the juridical equivalent of “experts” of the sovereign will.Footnote ⁸² Both are practical criteria, drawing upon norms about how a public perceives the source of order, and partly constituted by the teleological aims of the rules. Neither of these features has much to do with Hart’s secondary rules, as Hart’s rules are known primarily to officials, and they can apply during periods of civil strife—they are not suitably public reasons, in the sense of binding both in foro interno and in foro externo.

3.1 The Known Collective Emergency

The first principle of nature, the principle of solicitude (or jus natural), is the normative foundation of the Hobbesian political project. It functions as a maxim that depicts an essential feature of the human experience. By this principle, “every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war.” Footnote ⁸⁴

The principle of solicitude is the most remarkable of the natural virtues since it is the fundamental precept from which the rest are supposed to spring. It is also interesting because, if there is any natural rule that truly deserves the name of “natural law” in Hobbesian philosophy, it is the first rule. The Hobbesian rule of solicitude occupies the same foundational role in his philosophy that the conservation principle occupied in Thomistic philosophy, and shared similar content as rights.Footnote ⁸⁵ Why does Hobbes hesitate to honor it with the literal status of natural law?

There are two reasons why the rule of solicitude might provide us with reasons for action that are legally binding, in the sense of providing a collection of people with ultimate prudential reasons for action. First, it is granted by both Aquinas and Hobbes that the right to life and liberty can grant a prudential exception from the sovereign’s rules in extreme conditions, though for Aquinas the exceptions are emergency dispensations or divine revelations, and for Hobbes, they are rights to self-defense when threatened with execution.Footnote ⁸⁶ In other words, both acknowledge that the solicitude principle has robust practical force, to the point where it is impossible to avoid calling it a ultima facie reason for action. The difference is that, for Hobbes, the rule of solicitude is not a public reason (binding in foro externo). It binds only individual action.

Indeed, it is hard to argue that the rule of solicitude is not an ultimately binding reason for individual prudential action. Hobbes is explicit on this point: if the sovereign ever wishes to put you to death, then you are thereby placed in a state of war with the commonwealth, and you can do whatever you need to do to secure your liberty.Footnote ⁸⁷ Hobbesian subordination to the sovereign is not threatened by that concession, since while we might place some limits on the conditions wherein the law of solicitude is applied (i.e., in transfer), the rule itself can never be dismissed.

But second, it can be argued—contrary to Hobbes’s actual views—that the first principle is binding in some circumstances (both in foro interno and in foro externo), and therefore can provide us with prudential reasons for collective action in some circumstances. That is, it could be argued that the rule of solicitude directly obliges us to observe legal limits to the sovereign’s powers, just in case the sovereign fails to satisfy the duties of self-care implied in the tenth natural law, i.e., to prevent foreseeable ecological disasters in the common land. That is to say that when Hobbes claimed that the present sovereign was not bound by environmental provisos in the original contract related to collective goods (as we saw in §1.2.), his claim was insufficiently motivated. Or so one might think.

When we talk about existential threats, the first thing called to mind is the threat of common environmental disaster that is typical in religious apocalyptic works of literature. A drought, flood, or plague that foreseeably afflicts both of us in our homestead is our problem, not just mine and not just yours. And, intuitively, that is just to say that it is binding in foro externo, in public for the public. It is a clear collective problem, at least on some conceivable occasions.

Now, to be sure, I have a very specific range of cases in mind. There are plenty of near-miss cases that are of no interest to us, or do not qualify as “known collective emergencies”. Indeed, the history of civilization is littered with obtuse millenarians, led by superstition and unjustifiable prognostication. So, mere belief in emergency, causing alarm, is not significant to make a collective existential threat. Instead, let us limit our consideration only to those toy cases where there is, as a matter of fact, a clear collective problem; that this problem is known by all those experts who engage in good faith examination of objective evidence; that subjects operating in good faith who consult with the experts result in consensus belief that something ought to be done; and that there is a reasonably clear consensus on what sorts of policies need to be done to overcome the disaster. And, finally, let us suppose the sovereign forbears from doing the thing that needs to be done, either due to indifference, disbelief, or absence of political will.

Notice that even when existentially motivated, ecological threats have nothing to do with the (non-)existence of the sovereign office, which can neglect them at leisure without loss of its legal powers. Hence there might be reasons to suppose that the first rule is not just a ultima facie reason for action, but also a natural human law, at least in these contexts of a commonly recognized existential threat.Footnote ⁸⁸ We should not be surprised by the persuasive authority of experts in emergencies to challenge the edicts of the sovereign office. In such cases, the directive to act according to the demands of collective prudence is derived in foro interno and in foro externo, and so it fits with Hobbes’s motivation for his account of law, seemingly without conforming to the criterion of sovereign command.

Hobbes could respond in various ways, corresponding roughly to our surveyed legal theories:

1. 1. Legal positivism: make an analogy to divine “law”. The first strategy would be to dismiss intellectual authorities in the same way we dismissed divine charismatic authorities. The analogy would have some textual basis since, in his remarks on the nature of miracles, he notes that Biblical figures like Moses are taken to be the cause of natural disasters.Footnote ⁸⁹ He could (justifiably) argue that such figures and their ecological analogs could not bring a decisive end to the war of all and all, and so continue to distinguish them from the sovereign.

   Yet Hobbes believes that the sovereign’s mastery over civil law is made effective in securing compliance through that office’s capacity to inspire awe. Since the sovereign has no hope of maintaining the commonwealth in the case of perceived ecological collapse, those who do have mastery over nature would seem to retain the final veto, for practical purposes. So, there is little prudential reason to deny that the sovereign is obligated to heed their counsel and act accordingly.

2. 2. Legal dualism: ecological threats are justification-rights. One way of denying the lawfulness of the rule of solicitude would be to invoke the distinction between claim-rights and justification-rights introduced in §1.1.Footnote ⁹⁰ Using that distinction, we might think that perhaps the rule of solicitude is a justification-right (not binding on others), as opposed to a single unified criterion for legal validity which produces a coherent set of claim-rights. That is, perhaps I have a natural right to live, but you do not have a natural obligation to not kill me. Since the natural right does not imply a correlative duty, it is not a public reason for action in the relevant sense, as its normativity lacks the coordinated character of public reasons. It is a right, but only in the sense of being a liberty.Footnote ⁹¹

   But this could not apply to the matter at hand. We are considering a special range of cases, where robust ecological threats do threaten the settled community in their habitat. There is no point in denying that such collective existential threats provide at least prima facie reasons for both joint action and belief about joint action independently of actual individual or cultural desires or beliefs. The question is whether they automatically provide ultimate reasons for action insofar as they are perceived to be genuine. And the answer seems to be “yes”: since my claim on the use and protection of a precious collective resource (e.g., water) is that you have a duty to protect the very same precious resource, on the assumption that your duty also justifies your right to use it. Coordinated joint prudential obligations look like revisions of the pseudo-contract, once it is understood as a practical model we can rely upon to structure our expectations, and they originate in our rights. There is no point in offering scholastic complexity in such dire circumstances.

3. 3. Classical natural law: environmental dethronement. The plain fact that sufficiently robust threats to an ecological system provide reasons for action that are binding on subjects in practice is also a prudential threat to the sovereign office. So, if the civil peace is disrupted, then so is the sovereign. Hence, one might say that if a political ruler fails to act on a sufficiently robust ecological threat, it must turn out that, in retrospect, they were not sovereign. It would then follow that whoever directs action toward the resolution of the emergency becomes sovereign by an unusual route, as the rule of the unwise king is retroactively annulled.

   This is an unlikely story. For one thing, as we have seen, the sovereign has no legal duties of that (or any) kind, they not being bound by any exceptions or provisos in the original contract related to natural ecology. For another, Hobbes was happy to speak of deposed kings, so it would be a strange “natural-law”-like conceptual innovation to appeal to retroactive dethronement. And, finally, it must be recalled that the demands of prudence are always about managing future expectations. A practical theorist of law does not seem to have the resources to make revisionist reassignments of the sovereign office.

4. 4. Legal pragmatism: insist that legal reasons must be interpreted as rational commands. The sovereign’s rules are distinctive, not just because they have the right force, but also because their reasons have the right form. The rule of solicitude is a principle of nature, and Hobbes believes that these rules apply only internally (in foro interno). If he can maintain that opinion by stipulation—e.g., by treating in foro externo as meaning through command—then it would technically suffice as an answer to the puzzle. So, perhaps Hobbes might say that nature is a source of prudential reasons, but one whose directions are best understood in terms of liberties, not commands.Footnote ⁹²

   This reading faces two obstacles. For one thing, as we have seen, Hobbes is already in the habit of discussing natural rights as “forbidding” some varieties of conduct independently from sovereign command. For another, one could imagine cases where the preponderance of evidence is so overwhelming that rule of solicitude necessarily applies both internally and externally, independently of sovereign opinion—i.e., both as a sufficient guide to the conscience and as an incentive-bearing rule.

   But these obstacles are not decisive. For Hobbes might argue that the natural scientists only gain sufficient credibility to provide advice with ultima facie force because the sovereign antecedently bestowed sufficient honors upon them, which provide them with the practical powers to sound the alarm. Since they can be expected to cause political troubles when ignored, the sovereign is obliged by prudence to attend them, and subjects are obliged by law to attend to them. If the sovereign does not attend to emergencies, then either it signals the oncoming dissolution of the commonwealth and a return to the state of nature, or signals that the practical transfer of right must be placed into the hands of scientific experts through an unusual chain of succession. And since these consequences arise solely from the contingencies of practice, all of this can be inferred without supposing that we have found a radical exception to the chain of normative authority—i.e., that the individual dissenter has an in-principle right of insurrection analogous to Aquinas’s treatment of Daniel and the pharaohs. So, to me, (4) seems like a plausible resolution of the puzzle.

In this section, I have suggested that the capacity for non-sovereign leaders to help a collective avoid environmental devastation are conceptually sufficient to satisfy Hobbes’s demands that laws be collectively binding in foro interno and in foro externo—despite the fact that Hobbes would likely disagree. However, this is not something that a wide legal pragmatist reading of Leviathan needs to worry about. For, in the kinds of cases we are interested in—where there is a genuine collective existential threat, known to all reasonable people, vouched by respectable experts—then, from a practical point of view, insofar as there is a sovereign, that sovereign shall act on the threat. Although it is conceptually possible to imagine a suicidal sovereign, a suicidal ruler is not the kind of sovereign we will ever confront in experience. For the set of public reasons that establish the validity of law depend on conditions for the acquisition of knowledge related to action, insofar as their expectations are to be legitimately guided, and on the assumption that the respectable classes have a prudentially apt perspective. Hence, Leviathan is able to commit to the requirement of sovereign command, even when that command is expressed by non-sovereign experts.

Now, to be sure, my argument has been posed as an exploration, and is not decisive. So, it is at least possible that clever arguments might be devised which seek to leverage the observations made in (4) to the defense of a classical natural law theory. However, they would need to resolve the legal pragmatist’s central, probing question: what difference does the theoretical disagreement make to how we understand the effects of this case? Whether one assents to the pragmatist’s thesis or not, it should be acknowledged as a powerful defense—especially if it can be shown that the wide legal pragmatist is able to make sense of civil law in Leviathan in ways that others do not.

3.2. The Janus-Faced Sovereign

For Hobbes, all civil laws are meant to be consistent with the principles of nature. Which is to say, following §2 above, that Hobbes believes that the civil law and the natural principles are codependent. So, he says: “For whatsoever law is not written… is therefore also a law not only civil, but natural.”Footnote ⁹³ It is clear that, for him, nature and the sovereign are both essential to any characterization of the prudential point of civil law. What remains to be seen how these two sources of law intersect. Most problematically, we know that the sovereign is the sole legislator; second, that the sovereign is effectively immune to civil laws, since it may change those laws at will (insofar as it can get away with it, politically); and third, that any norms or conventions only become law because the sovereign indicates a tolerance for them by its inaction, or tacit consent.Footnote ⁹⁴

Hobbes says that natural “law” and civil laws are equal and compatible since both are simply different parts of the law in general.Footnote ⁹⁵ To support this idea, he suggests that civil law and natural “law” are codependent. On the one hand, all civil laws derive from natural qualities, in the sense that the commonwealth originates out of the natural, rational tendency to desire peace over war and chaos, and hence there can be no civil law except for that which is necessitated by the desire for stability. On the other hand, these natural virtues become genuine laws only in civil society, either by dictate of the sovereign or through its acquiescence.

There are two ways of understanding the codependence between two parts of law. The stronger reading would be that the two aspects of the law are coextensive (or, to use his phrase, “of equal extent”), going so far as to contain one another.Footnote ⁹⁶ Later scholars refer to this as the “mutual containment thesis” (hereafter MCT).Footnote ⁹⁷ The point of the MCT is to say that any instance of natural law will also be an instance of civil law, and vice versa: if we speak properly about natural law, we must say it is just one feature of every civil law, as civil law determines the best ways of making sense of the natural law.Footnote ⁹⁸ MCT can be contrasted with a weaker codependency thesis, which holds that the natural and positive parts of the law are mutually entangled practices, but do not hold in a relationship of conceptual necessity.

Both claims can be challenged by natural lawyers and positivists alike. One might reject the MCT by saying that one part of the law normatively overrides the other (e.g., for positivists, the dictate of the sovereign has veto power over natural virtues). Or one might reject the codependency thesis by claiming that the natural principles undermine the sovereign rule, instead of contingently supporting and nourishing it as Hobbes assumes. The former claim is about the constitution of the commonwealth, and the latter is about the mechanisms for change. Our present concern is with the possibility of the former since the latter was addressed in §3.1.

The MCT has the potential to cripple Hobbes’s theory from the inside. For Hobbes admits that any judge—including the sovereign judge—who seeks to put someone to death without hearing evidence is in violation of natural “law”, and hence is—as a matter of fact—an unjust judge. “For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice…”Footnote ⁹⁹ [emphasis added]. The only plausible reading of this sentence is to regard it as a reference to the ultimate office of state, given that it was written by a man who conspicuously attaches special significance to the lexeme “sovereign”. Indeed, Hobbes “doubles down” in his phrasing, declaring that an unjust rule is “no law of England”.^{Footnote 100} Yet if this were true, then it would apparently turn out that the natural and civil laws are not of “equal extent”, and hence problematize the idea that they are two parts of the civil law. As a result, it would erase the distinctiveness of Hobbes’s approach by defaulting back to natural law.Footnote ¹⁰¹

It is of course always possible to just say that Hobbes made a mistake, or “slip of the pen”. But this is unlikely, since his choice of language is reasonably precise, and indeed, bold. The more plausible interpretation is that, when faced with asserting the consequences of his theory, his hand trembled. Hence, it is a genuine textual puzzle. That said, there are at least a few ways that Hobbes might clarify his position:

1. 1. Legal dualism: divorce just verdict from just authority. On first glance, we might say that Hobbes’s best option would be to double down on the distinction between the justice of authorities and the justice of verdicts. For, in his view, the verdicts are justified even while he concedes that those verdicts arise out of unjust authority in that case. By saying that the verdicts are just, Hobbes preserves the view that the sovereign cannot act unjustly against its citizens. In effect, this strategy proposes that we should observe a strict difference between the kind of justice that operates over the law of words (i.e., beliefs about action and authority) and the law of deeds (i.e., the justice of what the judge does and gets away with).

   Though it has some superficially attractive features, this is actually a terrible reading. For elsewhere he claims that the tacit or explicit consent of the sovereign is sufficient to establish the just authority of any judge over their subjects.Footnote ¹⁰² It follows that the sovereign can fail to have a just authority by virtue of its having a just authority, which is paradoxical at best. It is in this sense that the sovereign judge appears to be “Janus-faced”, being both just and unjust at once. But this is just to say that Leviathan attempts to be a coherent intellectual project, and happens to have run into a hard textual problem.

2. 2. Legal positivism: presuppositions and focal meaning. Recall, the moral authority of the sovereign depends on the tacit presumption by a multitude that the sovereign shall interpret and enforce the natural principles, which include duties to adjudicate fairly and attend to evidence.Footnote ¹⁰³ But while that may be the motive force that causes the multitude to lay down their arms, the actual existence of the sovereign office only presupposes the original covenant with its attendant hopes. And the multitude itself is of no significance until it is unified, and only unified when unified in deference to a representative (i.e., the sovereign).Footnote ¹⁰⁴ In sum: perhaps the authority of the sovereign is presumed to be coextensive with the principles of nature for the purposes of the model, but may not be coextensive with them as a practical fact. So, conceptually speaking, the sovereign qua sovereign never makes an unjust verdict; but this is to say nothing about every case in practice. Sadly, whatever its virtues, this is an unsatisfying resolution of the paradox, since Hobbes does claim that the sovereign’s verdicts would be just.Footnote ¹⁰⁵

3. 3. Classical natural law: rebel. Perhaps Hobbes means to say that a sovereign that refuses to hear evidence in the arbitration of a verdict is effectively declaring war on the accused, as a tyrant. Though that would be a rather extreme reading of the situation, it would allow us to infer that the verdict is just insofar as it bears on other subjects, even while the sovereign is not a just arbiter over the accused, since it is in a state of war with the accused. Hobbes could be found guilty of being overly elliptical, but not incoherent. Perhaps, in other words, the man who is found guilty for fleeing an unjust judge is in a legal position that resembles Daniel’s orientation to the pharaohs, by virtue of his natural rights returned to him.

   Unfortunately, this is a rather extreme reading of the category of cases in question. For even if we agreed with Susanne Sreedhar that Hobbes endorsed a wide swath of resistance rights, we do not need to suppose that all refusals to hear evidence in court will inflame such rights.Footnote ¹⁰⁶ Since his language is universally quantified (“…for all judges…”), it will be difficult to evade defeaters.

4. 4. Legal pragmatism: Ulysses in England. Finally, we might think that his puzzling remarks about the unjust sovereign might only apply to the ways that England in particular has conceived its own legal system. Hence, as Klimchuk notes in a closely related passage on equity and forfeiture, a judge who arrives at their verdict on the basis of presumption and not evidence has rendered a verdict that is “no law of England”.Footnote ¹⁰⁷ Might the startling claim—“For all judges, sovereign and subordinate, if they refuse to hear proof, refuse to do justice”—be just a claim about English judges, put into an exaggerated or generalized form?

   It is possible. It must be emphasized that Hobbes’s theory is not necessarily anti-constitutional: for while the sovereign is surely not bound to any antecedent contract with the people (there being no such thing), the sovereign is indeed capable of binding its own conduct in a process I referred to as “sovereign self-care”. Like Ulysses and the mast, the sovereign is capable of binding itself to its own standing rules, albeit only for a limited time, and only so long as the rules are conceived of as rules which are good for the sovereign. Hence, Hobbes’s observation about the unjust sovereign judge could be simply an observation about the way that the sovereign state of England “takes care of itself”, insofar as it was constituted at the time of his writing. So, the man who flees the unjust judge has not necessarily had his rights returned to him, and yet we can still talk about a sense in which his conduct is lawful, on the assumption that the sovereign consents in England.

   This reading has a few virtues: first, it makes some sense of the universal quantifiers, as “…all judges…” comes to be understood as an elliptical reference to all English judges. It also saves the central theoretical aspirations of the text, while only doing minimal damage to his choice of words. The downside is that, so long as this is an appropriate reading for the passages in Chapter 26, it might also be a limitation on the scope of the theory, as it introduces some plausibility to the notion that Leviathan is an Anglocentric theory of law first and foremost. But then again, this is one of the things that the legal pragmatist expects of any proposal—a “theory” that is grounded in a few sets of relationships found in narrow idealized contexts, realized in a fallible way, and deployed only insofar as it is useful.

In short, the “post-natural” and “proto-positivist” aspects of Leviathan both provide equally suggestive and mutually exclusive hermeneutical resources for making sense of this specific type of case. Despite the fact that, at every point, Hobbes evinces an attitude of pragmatism in his unflagging faith that persistent dualisms can be overcome, Leviathan fails to provide a satisfactory, general, and explicit account of the potential of an unjust sovereign. The upshot is that the wide legal pragmatist’s reading of Leviathan, (4), is far from being a fait accomplit. And yet it does seem to fare better than the readings that are rooted in classical natural law (3) and positivist (2) traditions, in terms of charity, coherence, and fidelity to what is written.