Hobbes, Law of Nature, instrumental rationality, justice, liberty, homo oeconomicus

Rudolf Schuessler

English

Research Papers in Economics

RMM Vol. 1, 2010
http://www.rmm-journal.de/
Book Review
Perez Zagorin: Hobbes and the Law of Nature
Princeton NJ 2009: Princeton University Press.
ISBN: 9871400832026
by Rudolf Schüssler
Perez Zagorin died in 2009 and Hobbes and the Law of Nature, his last mono-
graph, is a kind of legacy. It brings the expertise of one of the leading scholars
on English early modern thought to bear on Thomas Hobbes, England’s most
innovative philosopher of the era (as Zagorin argues). Hobbes and the Law of
Nature is an essay not only on the law of nature but on many central concepts
in Hobbes’s philosophy. Zagorin displays his views lucidly and with experienced
skill. His main claim is that Hobbes was a natural law theorist in a novel but
distinctly early modern fashion. All attempts to remove natural law and na-
tural rights from Hobbes’s political and moral thought are bound to fail. This
is, of course, no novel approach and one should not expect to ﬁnd completely
new directions for Hobbes scholarship in Zagorin’s book. The strengths of his
treatment of longstanding issues derive from the nuances of his argument and
his skillful handling of controversies. In general, Zagorin takes the side of those
who read Hobbes against the background of early modern intellectual history. To
my knowledge, no recent intellectual historian has emphasized the self-interest
motive in Hobbes to the exclusion of natural law and morality. The champions
of rational egoism in Hobbes usually prefer immanent interpretations and they
therefore miss, here I agree with Zagorin, the subtleties of Hobbes’s morality
which come into proﬁle only in comparison with the thought of his time.
With respect to natural law and natural rights Hobbes’s intellectual back-
ground extends back into the Middle Ages but the early modern era was also
rich in treatises on the subject. Zagorin supplies the reader (in Chapter 1) with
a concise overview of Catholic and Protestant natural law thinking. Hobbes in-
tended to renovate both, and Zagorin emphasizes that this intention entailed an
implicit critique of Hugo Grotius. Whereas it was traditionally assumed that the
principles of natural law were immediately evident, as “writings in the heart” or
via some faculty of moral insight, Hobbes believed that they had to be deduced.
The Hobbesian roots of natural law can be found as dispositions in the book of
nature and may be deciphered by anybody who reads that book with a clear and
receptive mind. Such a reader will study nature as a system of bodies in motion
and notice that all things tend to preserve their being. Hence, self-preservation
is a basic drive which gives rise to a natural right to do everything that serves2 Rudolf Schüssler
one’s own preservation. Zagorin contends that Hobbes was the ﬁrst philosopher
who did not derive natural right from natural law. I am not sure whether this
is right. Our knowledge concerning the rise of natural rights in late medieval
and early modern thought is far from satisfactory, not least because the text
production “On Justice and Rights” (De iustitia et iure) and related subjects was
so immense in these eras. Konrad Summenhart (c. 1455–1502), whose ideas per-
vaded all subsequent scholastic studies “On Justice and Rights” but who is not
mentioned by Zagorin, did already translate physical dispositions into the lan-
guage of rights. In any case, Hobbes thinks that a direct logical road leads from a
natural right of self-preservation to natural laws which help to maintain peace.
For this reason, obedience to natural law is in the interest of each individual
because it renders self-preservation much more likely. However, Zagorin points
out that Hobbes’s precepts of natural law are also commands of God and gui-
delines for making men virtuous. One might suspect redundancy here, but this
objection shall be postponed for the moment because Zagorin answers it more
fully in Chapter 4.
Chapter 2 of Hobbes and the Law of Nature puts some ﬂesh on the bones of
the book’s argument. Here, human nature and the state of nature come to the
foreground and the Hobbesian creation of the commonwealth is outlined. The-
se are, of course, moves which are familiar from most treatments of Hobbes’s
political philosophy and I will only comment on what seems to me Zagorins’s
peculiar contribution to the ongoing Hobbes debate. This also means that we
regard the approaches of Taylor, Warrender, and Martinich as not completely
off the mark and concentrate on Zagorin’s additions and corrections. His main
point in Chapter 2 touches upon the relation of natural law and civil law. From
a traditional Christian perspective civil law should be an outﬂow of natural law.
It should codify what natural law demands and if the implications of natural
law are uncertain or leave room for design, civil law should take care not to con-
tradict natural law. (For this reason, early modern handbooks of moral theology
were full of rules for moral risk management. They were explicitly thought to
be relevant for lawyers and hence implicitly for the design and interpretation
of civil law). According to Zagorin it is an important aspect of Hobbes’s thought
that he breaks with the tradition of regarding natural law as a higher or cover-
ing law. He rather equates natural and civil law and thus creates a form of legal
positivism. Zagorin quotes Hobbes saying that civil law and natural law “con-
tain each other and are of equal extent”. This is a strong claim. I believe that
Hobbes is rather concerned with the interpretation of both kinds of law here.
Since the sovereign is arbiter of both and his interpretation practically establis-
hes the meaning of laws, civil law and natural law cannot contradict each other.
However, this does not entail that natural law and civil law cannot diverge in
principle. Natural law embodies the conclusions of right reason from the natural
right of self-preservation. A sovereign may fail to draw the right conclusions in
his interpretation of civil law, although nobody can aspire to have an elevated
enough epistemic status to correct the sovereign. In my view, Hobbes is alludingBook Review: Hobbes and the Law of Nature 3
to the consequences of this epistemic shortcoming in his remark but he does
not regard the sovereign as absolutely infallible.
The sovereign fully takes centre stage in Chapter 3. Here, Zagorin crosses
swords with Quentin Skinner on the subject of republican liberty. Republican li-
berty means not being dominated by others as human being and as citizen. The
importance of this concept of liberty not only in the early modern era but also
before should be out of question. Nevertheless, I agree with Zagorin that it has
only secondary importance for Hobbes who is a classical champion of negative
liberty. Hobbes’s understanding of liberty is strongly inﬂuenced by his natural
philosophy and thus unimpeded motion becomes the core concept for political
liberty. As a further point, Zagorin argues that the Hobbesian sovereign will be
a moral ruler. Zagorin follows Larry May in regarding equity as the central ca-
tegory of Hobbes’s political and legal philosophy. Indeed, although the sovereign
cannot be unjust he can fail to be equitable, and therefore moral standards exist
against which he can be judged. However, such judgements are matters of con-
science and the only judge who may punish the moral faults of a sovereign is
God. Zagorin takes account of Hobbes’s view that breaches of natural law will
lead to natural punishments through diseases, disasters or wars. God is at best
indirectly involved in these chains of consequences but that does not mean that
Hobbes fails to regard him as the ultimate cause.
The focus of Chapter 4 is on Hobbes the moral philosopher. Zagorin insists
that Hobbes does develop a moral philosophy, he quotes authors approvingly
who ascribe a virtue theory to Hobbes, and he takes care to show that Hobbes
goes beyond mere moral contractualism. It is true that Hobbes’s concept of ob-
ligation is contractualist because no obligation can arise without the consent of
an agent. Yet moral duties or virtuous action can arise apart from obligations
in a Hobbesian world. Obligation is traditionally deﬁned as “bondage of law”
(vinculum juris) in medieval Roman law and it therefore presupposes a legal
context besides which moral contexts may exist. It should also be clear that the
traditional deﬁnition of obligation undercuts all talk of “prudential obligation”.
As far as prudence is concerned we should also handle with care Hobbes’s al-
leged identiﬁcation of this virtue with a rational interest calculus, especially if
this calculus is tailormade for modern homo oeconomicus. Zagorin makes use of
the distinction between psychological and tautological egoism in order to show
that Hobbesian rational man need not be restricted to a classical set of selﬁsh
motivations (e.g. power, money, sex). It is tautological to assume that everybo-
dy acts for his own good because what he acts for is for this very reason his
own perceived good. This point was already made ad nauseam by the medieval
scholastics. The self-interest school of Hobbes studies is on stronger ground with
the claim that natural laws hold because they are in the interest of individual
agents. It is customary to quote Hobbes’s reply to “the fool” in this respect. The
fool says that there is no justice and he intends to break covenants even if the
other party has already performed. This setting becomes relevant because fear
of non-performance by the other side might be a legitimate cause for breaking a
covenant. If the other side has already performed such a fear would obviously be4 Rudolf Schüssler
nonsensical. Without fear as a legitimate excuse, it becomes unjust not to fulﬁl
one’s own part in a covenant, although it may appear very much in one’s interest
to do so. Hobbes then goes on to show that nobody can have a real interest in
breaking covenants as a second mover. Such behavior, if noticed by third parties,
would lead to the exclusion of the agent from civil society. The agent would have
to remain in a state of nature and perish there rather quickly and nastily. Now,
isn’t that a perfectly egoistical reason devoid of any moral connotations? Zago-
rin concedes the point but adds that Hobbes is arguing with a fool here. The fool
understands only the language of rational egoism, which does not entail that
Hobbes would not accept moral reasons for pacta sunt servanda. Zagorin’s re-
joinder makes a point but I think it concedes too much. We should ask: Why is
the fool’s risk assessment objectively wrong in Hobbes’s eyes? From a modern
point of view the whole question centers on the assessment of probabilities of
stealth combined with utility gains that might counterbalance a small risk of
becoming stuck in the state of nature. Without assumptions about these magni-
tudes it remains open whether the fool is right or wrong—and thus whether he
is a fool at all. For Hobbes things look different. Breaking covenants as a second
mover cannot earn anything in principle that might outweigh a loss in survival
security, despite Hobbes’s subjective understanding of “personal good”. Securing
one’s survival is a right of nature but not a mere license. It grounds a duty of
self-preservation and therefore embodies the old, morally charged notion of ius.
In the argument against the fool, Hobbes relies on objective interest against the
subject’s understanding of its own interest. This objective interest gives rise to a
duty not to risk one’s self-preservation even for possible utility gains of arbitrary
size. Hobbes therefore answers the fool with a moral argument.

Perez Zagorin: Hobbes and the Law of Nature

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Perez Zagorin: Hobbes and the Law of Nature

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