Transcript Aquinas on Law (2) -

Hobbes Notes 2 - Commonwealth [1]
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Game plan:
Hobbes thinks he has established our need for a Sovereign
(i.e., The State)
Has he?
Here’s what it depends on:
(a) is the State of Nature as bad as he thinks?
(b) even if it is, is the cure Government?
(bi): might morality be enough - doing without government?
(bii) even if we need government, do we need just any government? Or do
we get to be choosy??
[When we get to Locke, we’ll see argument for Limited government...]
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Meanwhile, here’s how Hobbes proceeds.
Hobbes Notes 2 - Commonwealth [2]
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1. Representation theory:
PERSON, is he, whose words or actions are considered, either as his own, or
as representing the words or actions of another man ..
(1) his own: Natural Person;
(2) another: Artificial person.
.No man is obliged by a Covenant, whereof he is not Author or beside the
Authority he gave...
Multitude naturally is not One, but Many; if the Representative consist of
many men, the voice of the greater number, must be considered as the voice
of them all.
-> [Hmmm... can this really work?? ]
Hobbes Notes 2 - Commonwealth [3]
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The final Cause, End, or Design of men (who naturally love Liberty, and
Dominion over others,) in the introduction of that restraint upon themselves
called Commonwealths is the foresight of their own preservation, and of a
more contented life
The Laws of Nature are contrary to our natural Passions. And Covenants,
without the Sword, are but Words, and of no strength to secure a man at all.
Therefore notwithstanding the Laws of Nature -If there is not great enough Power erected for our security, then every man
will, and may lawfully rely on his own strength and art
However great a Multitude; if their actions be directed according to their
particular appetites, they can expect no protection, neither against a Common
enemy, nor one another ...
Hobbes Notes 2 - Commonwealth [4]
• 2. Creating the Commonwealth
• (A) By Institution [Hobbes’ version of the political version of
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the “Social Contract”:]
“The only way to erect such a Common Power is, to confer all their
power and strength upon one Man, or upon one Assembly of men,
to reduce all their Wills unto one Will
->> to appoint one Man, or Assembly of men, to bear their Person;
> This is more than Concord; it is a real Unity of them all
>> made by Covenant of every man with every man
in such manner, as if every man should say to every man, I authorize
and give up my Right of Governing my self, to this Man, or to this
Assembly of men, on this condition, that thou give up thy Right to him,
and Authorise all his Actions in like manner. This done, the Multitude
so united in one Person, is called a COMMONWEALTH ... This is the
Generation of that great LEVIATHAN
Hobbes Notes 2 - Commonwealth [5]
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• 2. Creating the Commonwealth (continued)
Problem: But what if we never signed?
Hobbes’ Claim:
“Every one, as well he that Voted for it, as he that Voted against it,
shall Authorise all the Actions and Judgements, of that Man, or
Assembly of men, in the same manner, as if they were his own”
[Is this high-handed? - If not, why not??]
Presumed answer: because we are under desperate necessity
- a good answer -- if we are!
Hobbes Notes 2 - Commonwealth [6]
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2. Creating the Commonwealth
(continued)
(B) By Acquisition: acquired by Force ...
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> differeth from Sovereignty by Institution, only in this, that men who choose
their Sovereign, do it for fear of one another, and not of him whom they
Institute; but in this case, they subject themselves, to him they are afraid
of.
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But the Rights, and Consequences of Sovereignty, are the same in both....
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Question: Why are they? Why doesn’t it matter which method is used??
[A further question: Given the “natural equality” of men, is this method
possible?]
[We know it happens: but that is not government from a State of Nature it’s revolution, change from one government to another...]
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Hobbes Notes 2 - Commonwealth [7]
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2. Creating the Commonwealth
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Problems:
• re (1): we won’t get unanimity. Why will we accept
Hobbes’ claim that a majority is enough?
• re (2) Why are coerced agreements legitimate?
Hobbes Notes 2 - Commonwealth [8]
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2. Creating the Commonwealth
• Is the “contract” coerced?
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Coercion: A Coerces B into doing x, if:
1) B doesn’t want to do x in the status quo
2) A forcibly alters B’s options such that
3) doing x becomes better for B than the others
[e.g. you hand over your wallet instead of getting shot]
But x is still a step down.
So: coercers worsen people’s situations
- precisely what the Law of Nature forbids....
Hobbes Notes 2 - Commonwealth [9]
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2. Creating the Commonwealth
• Is the “contract” coerced?
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Argument: no it isn’t, because signing it leaves us better off than if we stay
in the State of Nature
• Claim: S of N is worse than any non-SN
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[Is that true?
-> If it is, is any sort of state justified??
- e.g. Nazis?? [see Fascism, mentioned a bit later..]
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That’s to think about ....!
Hobbes aims to justify “the” state. ...
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just any state?? [Apparently.....]
Hobbes Notes 2 - Commonwealth [10]
• Rights of Sovereigns
• > From this Institution of a Commonwealth are derived
all the Rights, and Faculties of the Sovereign
• 1. they are not obliged by former Covenant and cannot
lawfully make a new Covenant without his permission
• 2. there can happen no breach of Covenant on the part
of the Sovereign and
• consequently none of his Subjects can be freed from his
Subjection
• [Meaning, the Law reaches to everyone, forever after ...]
• Hobbes’ reason, of course, is that we deal with each other,
not with the Sovereign himself...
Hobbes Notes 2 - Commonwealth [11]
• Rights of Sovereigns
• Hobbes’ reason, of course, is that we deal with each other - not with
the Sovereign himself...
-> IMPORTANT: The “Contract” is of each person with each other
person - not with the Government.
[remember, the government doesn’t exist yet...]
-> the “contract” is strictly notional. So, “where” does it take place?
[answer: in the heart and mind of each person ...]
• 3. “he that dissented must now consent with the rest .... ”
• 4. because every Subject is by this Institution Author of all the Actions
of the Sovereign, -- [Therefore, The sovereign can do No Wrong]
• [note: But he can be “wicked”]
Hobbes Notes 2 - Commonwealth [12]
• Rights of Sovereigns (continued)
• 5. no man that hath Sovereign power can justly be put to
death; and he (or it) has the Right to Judge the means of
Peace and Defence;
• 6. to be Judge of what Opinions and Doctrines are
averse, and what conducing to Peace [cf. The
• property: a separate slide, to emphasize this ...
Hobbes Notes 2 - Commonwealth [13]
• Rights of Sovereigns (continued)
• 7. the whole power of prescribing the Rules, whereby every man
may know, what Goods he may enjoy and what Actions he may do,
without being molested by any of his fellow Subjects
• [i.e., of Propriety]
• >> These Rules of Propriety and of Good, Evil, Lawful and
Unlawful in the actions of Subjects, are the Civil Laws ...
• [Immensely important. Does the sovereign get to exercise arbitrary
power over us all??]
• 8. Judicature (hearing and deciding all Controversies, re Law or Fact)
• 9. making War, and Peace with other Nations ... [and of] choosing of
all Counsellors, Ministers, Magistrates, and Officers ... of Rewarding
and Punishing according to the Laws ...
Hobbes Notes 2 - Commonwealth [14]
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“The power of all together is the same with the Sovereign’s power” [thus it
is nonsense to say that he has less than the people taken all together..]
“But a man may here object, that the Condition of Subjects is very
miserable; as being obnoxious to the lusts, and other irregular passions of
him, or them, that have so unlimited a Power in their hands.”
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Hobbes replies:
>> the estate of Man can never be without some incommodity or other; and
that the greatest, that in any form of Government can possibly happen to
the people in general, is scarce sensible, in respect of the miseries, and
horrible calamities, that accompany a Civil War
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[is it a good answer??]
Hobbes Notes 2 - Commonwealth [15]
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Liberty and Necessity
- are Consistent. Because every act of man’s will, and every desire, and
inclination proceedeth from some cause ... they proceed from necessity.
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Political Liberty: But as men have made Artificial Chains, called Civil Laws: it is in
relation to those Bonds only it is, that I am to speak now of the Liberty of Subjects
If we take Liberty in the proper sense: freedom from chains, and prison, it is
absurd for men to clamor for the Liberty they so manifestly enjoy
[Note: This brings up the question of “measuring” Liberty. Recall LN2: that we claim
for ourselves only “so much” liberty as we are willng to allow others against us]
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>> The Liberty of a Subject, lyeth therefore only in those things, which the
Sovereign hath permitted: such as is the Liberty to buy, and sell, and otherwise
contract with one another; to choose their own abode, their own diet, their own trade of
life, and institute their children as they themselves think fit; and the like.
[note Hobbes’ examples: but plenty of governments have proscribed precisely those
things!]
Hobbes Notes 2 - Commonwealth [16]
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XXIV: Of
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The Nutrition of a Commonwealth consisteth in the Plenty, and Distribution
of Materials conducing to Life
The Distribution of the Materials of this Nourishment ... in a word, Property;
belongeth in all kinds of Commonwealth to the Sovereign
The Sovereign assigneth to every man a portion of land, according as he, and
not according as any Subject, or any number of them, shall judge agreeable to
Equity, and the Common Good. ...
>> The owner has a right to exclude all other subjects from the use of them;
and not to exclude their Sovereign
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the Nutrition and Procreation of a
Commonwealth
Hobbes Notes 2 - Commonwealth [17]
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XXIV: Of
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>> The owner has a right to exclude all other subjects from the use of them;
and not to exclude their Sovereign
... For seeing the Sovereign ... is understood to do nothing but in order to the
common Peace and Security, this Distribution of lands, is to be understood as
done in order to the same ... [???]
-- also to assign in what places, and for what commodities, the Subject shall
traffic abroad, ..
It is ... necessary, that men distribute that which they can spare, and
transfer their property, mutually one to another, by exchange and mutual
contract.
Therefore it belongeth to the Commonwealth .. to appoint in what
manner, all kinds of contract between Subjects ...are to be made...
[question: why is this last bit “necessary”?]
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the Nutrition and Procreation of a Commonwealth
Hobbes Notes 2 - Commonwealth [18]
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4. The Law of Nature, and the Civil Law, contain each other, and are of
equal extent. For the Laws of Nature, which consist in Equity, Justice,
gratitude, and the other moral Virtues ... are not properly Laws, but qualities
that dispose men to peace, and to obedience. When a Commonwealth is once
settled, then are they actually Laws, and not before; as being then the
commands of the Commonwealth
8. Law is a Command .. only to those, who can take notice of it [Note: This
is Aquinas’ “promulgation” condition]
(-->> Not for fools, children, madmen, or animals)
It is therefore necessary, to consider in this place, what arguments, and signs
be sufficient for the knowledge of what is the Law; that is to say, what is the
will of the Sovereign
Hobbes Notes 2 - Commonwealth [19]
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The Law of Nature obliges all Subjects without exception
-- though not written nor otherwise published.
Every one takes knowledge of it from his own reason, so it must be “agreeable
to the reason of all men”
-> i.e., the L of N doesn’t need publishing
[as in Aquinas: “written on the hearts of all”]
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Hobbes assumes that the Sovereign does will the Law of Nature.
• - But - what if he doesn’t??
Hobbes Notes 2 - Commonwealth [20]
• Not the Letter, but the Meaning (= authentic Interpretation) of the
Law, that counts.
• So the interpreters have to be those that the Sovereign shall appoint.
• [Does this follow? How?
• We may suspect that the Sovereign will always warp them.
• [We need an independent Judiciary]
• (-- But is this really possible??]
Hobbes Notes 2 - Commonwealth [21]
• Therefore all the Sentences of precedent Judges that have ever
been, cannot all together make a Law contrary to natural Equity:
• >> “Nor any Examples of former Judges, can warrant an unreasonable
Sentence, or discharge the present Judge of the trouble of studying
what is Equity ... from the principles of his own natural reason. “
• For example, ‘Tis against the Law of Nature, To punish the Innocent;
and Innocent is he that acquitteth himself Judicially
Hobbes Notes 2 - Commonwealth [22]
• The Case of the Innocent but Legally Convicted Victim:
• -> I say therefore, that there is no place in the world, where this
can be an interpretation of a Law of Nature.
• For he that judged it first, judged unjustly; and no Injustice can be a
pattern of Judgment to succeeding Judges. ...
• [OK: where does this leave the Sovereign if he’s a Hitler or Stalin??]
• Again, the word of the Law
• [1] commandeth to Judge according to the Evidence
• [2] neither shall the Letter of the Law be followed to the
condemnation of the Innocent
• [3] nor shall the Judge give Sentence against the evidence of the
Witnesses ...
• (- how do we bring about observance of these ideas??)
Hobbes Notes 2 - Commonwealth [23]
• The Good Judge will have:
• 1. Equity: A right understanding of that Principal Law of
Nature called Equity
• 2. Contempt of unnecessary Riches, and Preferments.
• 3. Dispassion: won’t be moved by fear, anger, hatred,
love, and compassion.
• 4. Patience to hear; diligent attention in hearing; and
memory to retain, digest, and apply what he hath heard...
Hobbes Notes 2 - Commonwealth [24]
• Hobbes on Punishment
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Before the Institution of Commonwealth, every man had a right to every
thing
>> this is the foundation of that right of Punishing
-> The Subjects did not give the Sovereign that right; but only in laying down
theirs, strengthened him to use his own...
From the definition of Punishment, I infer
1. neither private revenges, nor injuries of private men, can properly be styled
Punishment; because they proceed not from public Authority.
2. that to be neglected, and unpreferred by the public favor, is not a
Punishment; because no new evil is thereby on any man Inflicted
[i.e., Harm = Worsening]
Hobbes Notes 2 - Commonwealth [25]
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3. Evil inflicted without precedent public condemnation, is not to be styled by
the name of Punishment; but of an hostile act ...
5. all evil which is inflicted without intention or possibility of disposing the
Delinquent or (by his example) other men, to obey the laws, is not
Punishment, but an act of hostility ...
7. Harm of Punishment must EXCEED benefit of crime
- otherwise it is “rather the Price ... than the Punishment”
Because it is of the nature of Punishment, to have for end, the disposing of
men to obey the Laws; if it be less than the benefit of the transgression, it
attaineth not [that end]
8. If there be a greater Punishment inflicted than prescribed by Law, the excess
is not Punishment, but an act of hostility..
9. Harm inflicted for a Fact done before there was Law that forbade it, is not
Punishment, but an act of Hostility .. [?]
[obvious question: moral law? Or government-originated law??]
Hobbes Notes 2 - Commonwealth [26]
• The safety of the People, requireth
• - that Justice be equally administered to all degrees of People; - the
rich, the mighty, the poor and obscure, etc.
• Inequality of Subjects, proceedeth from the Acts of Sovereign Power;
and therefore has no place in the presence of the Sovereign
• The honour of great Persons, is to be valued for their beneficence,
and the aids they give to men of inferior rank
• - which entails equal taxes as well .....
• [which are “the wages, due to them that hold the Public Sword”]
Hobbes Notes 2 - Commonwealth [27]
• Social Security:
• And whereas many men, by accident unevitable, become unable to
maintain themselves by their labour; they ought not to be left to the
Charity of private persons; but to be provided for by the Laws of the
Commonwealth.
• For as it is Uncharitableness in any man, to neglect the impotent;
so it is in the Sovereign, to expose them to the hazard of such
uncertain Charity.
• But for such as have strong bodies, the case is otherwise;
• they are to be forced to work [“workfare”] (!)
Hobbes Notes 2 - Commonwealth [28]
• >> there ought to be such Laws as may encourage all manner of Arts;
as Navigation, Agriculture, Fishing, and all manner of manufacture
that requires labour.
• [Hobbes on the Population Problem:]
• “The multitude of poor, and yet strong people still increasing, they are
to be transplanted into Countries not sufficiently inhabited; where
nevertheless, they are not to exterminate those they find there
• ... And when all the world is overcharged with Inhabitants, then the last
remedy of all is War ...
Hobbes Notes 2 - Commonwealth [29]
• The OFFICE of the Sovereign .. consisteth in the end, for which he was
trusted with the Sovereign Power, namely the procuration of the Safety
of the people; to which he is obliged by the Law of Nature.
• But by Safety here, is not meant a bare Preservation,
but also all other Contentments of life, which every man by lawful
Industry, without danger or hurt to the Commonwealth, shall acquire to
himself.
• And this is intended should be done by a general Providence,
contained in public Instruction, both of Doctrine, and Example;
• and in the making, and executing of good Laws
Hobbes Notes 2 - Commonwealth [30]
• To the care of the Sovereign, belongeth the making of Good Laws.
• But what is a good Law?
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By a Good Law, I mean not a Just Law: for
• no Law can be Unjust.
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The Law is made by the Sovereign Power, and all that is done by such Power,
is warranted, and owned by every one ....
• A good Law is that which is Needful, for the Good of the People,
and withal Perspicuous.
Hobbes Notes 2 - Commonwealth [31]
• “Good Laws”
• A good Law is that which is Needful, for the Good of the People,
and withal Perspicuous.
• [criterion of ‘needful’: we’d be worse off without it...
• [but who is “we”? What if it makes some people better off - but at
the expense of others?]
• [Recall the First Law of Nature: We are to use methods of war only
to defend against the warlike acts of others...]
Hobbes Notes 2 - Commonwealth [32]
• “Good Laws”
• The use of Laws .. is not to bind the People from all Voluntary actions;
• - but to direct and keep them in such a motion, as not to hurt
themselves by their own impetuous desires, rashness or indiscretion
• [q: meaning what by ‘hurt themselves’?
• [recall: Hobbes has said that the object of every man’s action is some
good to himself....]
• [I think he is thinking mainly of interpersonal harms, which redound in
the end to the evil of ourselves as well ...]
• ..And therefore a Law that is not Needful, having not the true End
of a Law, is not Good.
• [“Letter” vs. “Spirit”]:
• The Perspicuity consisteth not in the words but “a Declaration of the
Causes and Motives for which it was made”
Hobbes Notes 2 - Commonwealth [33]
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[Good Applications of Good Laws - ]
The case of the Red Light with No Traffic
The purpose is safety (got by coordination)
In this case, safety is not furthered by waiting
So: should the officer lurking behind a billboard arrest the person who runs the
red light under these conditions?
So: No. For....
It is “not needful”
“The Office of the Sovereign is to make a right application of punishments
and rewards...
and in general “to apply his Rewards so there may arise from them benefit to
the Commonwealth”
Hobbes Notes 2 - Commonwealth [34]
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International Matters:
Law of Nations is the same thing as the Law of Nature
(an interesting idea which he doesn’t explore further: “I need not say anything
in this place...”)
[this somewhat conflicts with his citing international context as providing an
example of the state of nature, back in ch. xiii]
Hobbes Notes 2 - Commonwealth [35]
• Conclusions on Hobbes
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Good stuff:
1. thesis that normative politics is founded on individual practical reason
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2. Starting with a state-of-nature idea
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3. His picture of the “circumstances of justice”: many independent, pretty
rational beings of comparable powers in a situation of rectifiable scarcity,
who are not born with general affection for others nor general conscience
about them
[Why is this part of the “good stuff”?
- Because these are highly plausible assumptions that assume very little.]
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4. The Laws of Nature. All derived from a first Law prohibiting violence.
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5. forward-looking on punishment, and on encouragement of cooperation
as the key to social progress
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6. His list of what Sovereigns should do (as opposed to what they
supposedly have a Right to do)
Hobbes Notes 2 - Commonwealth [36]
• Conclusions on Hobbes
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Hobbes - the “Bad stuff”
1. His argument for the Sovereign
(i) If his depiction of the S of N were correct, we could never escape from it
[because:
a) govt “by institution” is impossible if men cannot cooperate at all
b) govt “by acquisition” [conquest] is impossible if we are literally equally
vulnerable
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(ii) If (a) is rejected and we accept that the Laws of Nature do have some
“foro externo” force, then the need for government is called into question
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The claim: any government is better than no government
becomes implausible given (i) (cf. Locke......)
The claim that government is necessary for the purposes he claims becomes
uncertain..... (given ii)
Hobbes Notes 2 - Commonwealth [37]
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2. His depiction of the rights of Sovereigns - note that we are supposed to
retain the right to self-defense.
Why not a few more, too?
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3. His claim that in a commonwealth, justice = the will of the Sovereign which he wiggles about...
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4. His apparent failure to assess the power of moral influence, teaching, and
so forth, which is largely responsible for his view that the political state of
nature would be one of “war”
[which, again, prepares us for Locke ...]
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Hobbes Appendix: - Fascism [38]
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Interlude: Mussolini’s “Fascism”
** Anti-individualistic
** “a nation” = “a few people express the conscience and will of the nation
**” ethically molded” etc
[uh, huh..]
** It is the State that creates the nation, conferring volition and therefore real life on a
people made aware of their moral unity”
• [uh, huh..]
** non-materialistic (and so, opposed to marxism -• [note: earlier, he had been a bigtime marxist...]
• ** not just the guardian
• ** nor organizer of wealth
• ** but “a spiritual and moral fact in itself” - the “custodian and transmitter and spirit of
the people”
• note how:
• ** the growth of empire is a manifestation of vitality”
• [So, go and beat up on the Ethiopians, who look like an easy target...]
Hobbes Appendix: - Fascism [39]
• So: All power to the State!
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Mussolini: “the State
(1) Authority which “ confers legal form and spiritual value on individual wills”
(2) Power - including “beyond its own frontiers”
- i.e., imperialism. Why? Well, because it is
“proof of the universal character of the decisions necessary to insure its development.”
Universal: [the fascist state not only beats up on its own people but on everyone else,
too!]
Anti-Egoism: M. preaches against “egoism”.
Everyone is to devote himself to --- what?
-> If nobody should think anything of themselves, doesn’t that imply that everyone is
worthless? [Or do we “find ourselves in the State”??]
Nonrational Motives: Fascism thrives on social discontent
-> people are easily led to believe that they need a “Leader” who can “set the country
straight.” That is the stuff of demagogues, old and new.
Anti-Liberalism: Mussolini sees the liberal state as a do-nothing state - a bunch of
wimps, mere accountants, “recording results” rather than acting.
[He’s right! Liberalism has the government doing little or nothing. Individual people
have energies and interests of their own. We don’t need a State to tell us what to do...]
Hobbes Appendix: - Fascism [40]
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Continual War:
-- aggressive war against other (and weaker) states
-- and against its own people
- such as the Jews
(The rest of the population got its come-uppance in other ways, such as getting
killed at the front in war)
National “Strength”
Liberal politics enabled the U.S. - a nation of wimps! - to become by far the
strongest industrial state in the world - enabling it to beat the fascists in war.
America was strong because Americans did not worship “strength” - did not
work “for America.”
If push comes to shove, wealthier states can indeed make war, as the American
example demonstrated.
What’s the moral?
Too many people apparently think that what we need is ...
more fascism..
Hobbes Appendix: - Fascism [41]
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This is political conservatism:
The view that the state may/should be used to make people better by criteria
that they don’t themselves share
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Questions:
1) why did/do people ever buy this stuff??
2) Could Hobbes be serious in claiming this this is OK??
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Did the people in Nazi Germany really have a duty to help the government
murder all those Jews?
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On to John Locke ....