Copyrighted material Acknowledgments. 1 Introduction The project Method Strategy Textual evidence 16

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1 Contents Acknowledgments Note ix xii 1 Introduction The project Method Strategy Textual evidence 16 2 Coercion, Rational Self-Interest, and Obligation Conflict in the state of nature Anti-social passions and sanctions for non-compliance Legal coercion, private good, and the common good The end of the story? Lloyd s account 34 3 The Authority of Law The concept of authority Even for the rationally and morally perfect The command theory of law Arbitration Beliefs or actions? 60 4 Political Obligation Egoism Moral reasons in Hobbes? The theory of political obligation The mutual containment thesis The rationale for political disobedience 91 5 Contractarianism Hobbes account: an interpretation What difference does the sovereign make? 105 vii

2 viii Contents 5.3 Contractual obligation: prudential or deontological? Obligation and reason The Hobbesian Analysis of Contracts under Coercion: A Critique Hobbes on voluntariness, coercion, and obligation Coercion, rationality, and voluntariness Rationality without voluntariness Conclusion Final Remarks 143 Bibliography 148 Index 157

3 1 Introduction According to the standard philosophical interpretation, Hobbes legal theory introduces the idea that coercion is the main feature of law. This reading then establishes that subjects have binding political obligations because complying with the law is the best way to promote their interests. Despite its prominence and intuitive character, I do not think that this account properly describes these central ideas of Hobbes legal and political theory. As I will show in the following pages, for Hobbes coercion is not the characteristic feature of law, nor does rational selfinterest play a key role in establishing subjects political obligations. In the book, I will develop a completely different interpretation of Hobbes political theory, one which stresses the sovereign s authority over his subjects. According to this view, the directives issued by the sovereign introduce reasons which replace other considerations for the subjects to act in one way or another. The subjects are then bound to obey the law because the sovereign commands them to do so, rather than because obeying the law constitutes an efficient means of promoting their rational self-interest. In this sense, I will argue that subjects are morally obligated to obey the law, rather than merely compelled to comply with the law by the sovereign s use of physical force or the threat to use physical force, as is assumed by the standard interpretation. As I will show below, Hobbes argues that subjects are morally obligated to obey the law in most cases. However, he also grants that they may legitimately disobey the law, though only in very exceptional circumstances. The standard interpretation of Hobbes theory of political obligation is not really able to properly account for this characteristic feature of his political philosophy; in fact, this 1

4 2 Hobbes on Legal Authority and Political Obligation reading introduces a theory that is not Hobbes. In contrast, I will show that the interpretation that stresses the sovereign s authority smoothly accommodates the key idea that subjects have binding political obligations even in cases in which to obey the law does not promote their rational self-interest, and it also establishes that they may legitimately disobey the law in the cases granted by Hobbes. The structure of this chapter is as follows. First, I will briefly describe the central elements of the interpretation of Hobbes theory of legal authority and political obligation that I will develop in the book (1.1). Next, I will discuss some methodological issues (1.2). Then, I will comment on my argumentative strategy (1.3). Finally, I will indicate how I will use the textual evidence (1.4). 1.1 The project The description and justification of the obligation to obey the law of one s state occupies a central place in Hobbes political theory. 1 Moreover, Hobbes writes that in Leviathan he pretends to nothing but what is necessary to the doctrine of Government and Obedience. 2 He also argues that the obligation to obey the law exhausts all political obligations: The Vertue of a Subiect is comprehended wholly in obedience to the Laws of the Commonwealth. To obey the Laws is Justice and Equity, which is the Law of Nature, and consequently is Ciuill Law in all Nations of the world. And nothing is Iniustice or Iniquity otherwise then it is against the Law. Likewise to obey the Laws is the Prudence of a Subiect. For without such obedience the Common wealth which is euery subiects safety and protection, cannot subsist. 3 The standard reading in the modern philosophical literature assumes that Hobbes political philosophy introduces a theory according to which subjects have binding political obligations because the sanctions for non-compliance provided by the law give them sufficient 1 In the book I will use the expressions political obligation and the obligation to obey the law interchangeably. 2 Leviathan, XLVI, 1082; see also De Cive, Preface to the Readers, 18, Behemoth, I, 165.

5 Introduction 3 reason to obey. 4 In fact, this view comprises two distinct albeit related theses: an account of law the vehicle through which the sovereign 5 exercises power over the subjects 6 and a theory of political obligation. The standard interpretation states that, for Hobbes, the characteristic feature of law lies in its causal capacity to compel the subjects to obey by the use of physical force or the threat to use physical force. Moreover, this reading states that the subjects are bound to obey the law because so acting best promotes their rational self-interest. 7 The above passage seems to introduce the second thesis: subjects have binding political obligations because so acting promotes their rational self-interest. And indeed, the two theses find strong textual support in several passages of the corpus. Despite its prominence and intuitive character, however, in my view this account does not correctly portray these key features of Hobbes political and legal theory. Certainly, the sanctions for non-compliance provided by the law give strong incentives for obedience, so that in many cases subjects have prudential reasons to comply with the law. Now, there also exist cases in which legal commands require that subjects act in one way while rational self-interest recommends acting in a different way. As I will argue in the following pages, Hobbes account actually involves the idea that the subjects are morally obligated to obey the 4 Hobbes generally uses subjects in both The Elements of Law and the English Leviathan (with the exceptions of Leviathan, XIII, 194; XXI, 330; XXXIX, 730), though he also normally uses citizens in both De Cive and the Latin Leviathan. Even so, Hobbes does not really distinguish between the two notions. See De Cive, VI, 20; XII, 8; XIII, 1; XIV, 20. See also N. Malcolm, Volume 1: Editorial Introduction, in T. Hobbes, Leviathan, N. Malcolm (ed.) (Oxford: Clarendon Press, 2012), pp ; Q. Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996), p. 286; Y.-C. Zarka, The Political Subject, in T. Sorell and L. Foisneau (eds.), Leviathan After 350 Years (Oxford: Oxford University Press, 2004), p I identify the sovereign with the office of government rather than with a particular person. See De Cive, VII, 14; Leviathan, XIX, 288; XXIII, 376; XXVIII, 496; Behemoth, I, 174; Dialogue, 137, for the distinction between the sovereign s natural and political capacities. Even so, in the book I will refer to the sovereign as he for stylistic reasons. 6 G. Klosko, The Principle of Fairness and Political Obligation, 2nd edn (Lanham: Rowman & Littlefield, 2004), p. 1; J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p Hobbes writes that the Common-wealth only, praescribes, and commandeth the observation of those rules, which we call Law ( Leviathan, XXVI, 426). 7 An interest in avoiding harm is sufficient to ground this view, although fear of death is usually adduced as introducing the relevant consideration to obey the law. According to Hobbes, however, there are things worse than death. See The Elements of Law, IX, 6; De Cive, III, 12; VI, 11, 13; XII, 5; XVIII, 1; Leviathan, XV, 234; XXXVIII, 698; XLIII, ; De Homine, XI, 6; Behemoth, I, 173 4; Dialogue, 85.

6 4 Hobbes on Legal Authority and Political Obligation directives issued by the sovereign even when complying with the law is not recommended by their rational self-interest. In this book, I will put forward a new interpretation of Hobbes theory of political obligation that accounts for this point, something which cannot be established in the context of a reading which states that subjects have binding political obligations because the sanctions for non-compliance provided by the law give them sufficient reason to obey. In a nutshell, my reading highlights the authority of law: Authoritas non Veritas facit Legem. 8 In particular, I will construe the directives issued by the sovereign as introducing authoritative requirements, so that the subjects are morally obligated to obey them. 9 In order to obtain a rough idea of the way I will account for the sovereign s authority over his subjects, it may be useful to consider an example. Joseph Raz portrays in a particularly vivid fashion the way governments which characteristically claim legitimate authority for themselves 10 intend to impose their orders over the citizenry: Governments decide what is best for their subjects and present them with the results as binding conclusions that they are bound to follow. A government does not merely say to its subjects: Here 8 Leviathan, XXVI, 431; see also Dialogue, This assumes that authority and obligation are the two sides of the same coin. See also L. Green, The Authority of the State (Oxford: Clarendon Press, 1988), pp ; Raz, The Morality of Freedom, pp. 23, 60, 100 1; J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1994), p. 325; J. Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, 2009), p. 134; A. Rosler, Political Authority and Obligation in Aristotle (Oxford: Clarendon Press, 2005), pp. 3, 87, ; A. J. Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), pp The writers who challenge correlativity state that the logical counterpart of authority is a general moral liability to have one s normative status altered. See A. I. Applbaum, Legitimacy without the Duty to Obey, Philosophy and Public Affairs, 38(3) (2010), pp ; S. Perry, Law and Obligation, American Journal of Jurisprudence, 50 (2005), pp ; S. Perry, Political Authority and Political Obligation, in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law, Vol. 2 (Oxford: Oxford University Press, 2013), pp. 4, Although Raz stresses that governments claim legitimate authority, he also believes that the scope of the authority of governments is more limited than the extent of the authority they actually claim for themselves. See Raz, The Morality of Freedom, pp. 70, 80; Raz, Between Authority and Interpretation, p In addition, Raz argues that as a matter of empirical fact there is no general obligation to obey the law. See Raz, The Morality of Freedom, pp ; J. Raz, The Authority of Law: Essays on Law and Morality, 2nd edn (Oxford: Oxford University Press, 2009), pp

7 Introduction 5 are our laws. Give them some weight in your considerations. But of course you may well be justified in deciding that on balance they should be disobeyed. It says: We are better able to decide how you should act. Our decision is in these laws. You are bound by them and should follow them whether or not you agree with them. 11 Raz illustrates the way governments intend their directives to be assessed by their citizens as follows: Take taxation, for example. Let us assume that its justification is in the moral reasons individuals have to contribute to the provision of certain communal services. The government assesses the just rate of contributions and demands that each of us should pay as assessed. It does not say: We think that that is the just rate, but we will understand if you refuse to pay, provided you did so after giving careful consideration to the balance of reasons, our demand included. They say: It is for us to decide what is the just rate to pay. You must pay the sum we prescribed unless you fall into one of the exceptions we allowed for. 12 In this book, I will argue that Hobbes analysis of law shares the essential features of the view developed by Raz. In particular, I will show that the directives issued by the sovereign are intended to affect practical reasoning by means of introducing authoritative requirements, which as such have the purpose of interrupting practical deliberation as well as providing the relevant reason for compliance. The idea that the sovereign s commands authoritatively regulate the subjects actions has some antecedents in the scholarly literature, 11 Raz, Ethics in the Public Domain, p See also J. Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999), p Raz, Ethics in the Public Domain, p Raz stresses that We all know that the claim I have just described is not the expression of one government s excessive zeal. It is part of the notion of government, part of the way in which, by their very nature, all governments operate. Whatever else they are, they claim the right to rule us by right reason, i.e. to take over from us the job of deciding what we should do, on certain matters ( Ethics in the Public Domain, p. 344).

8 6 Hobbes on Legal Authority and Political Obligation including points and remarks in articles and monographs in the history of political thought as well as in modern political and legal philosophy. 13 However, these interpretations are few and far between and none of them introduces a political and legal theory similar to the one I will develop in the following pages. Moreover, these readings do not analyze all the different features actually involved in Hobbes account. For my part, I aim to provide a comprehensive interpretation of Hobbes theory of legal authority and political obligation. In particular, my reading involves both conceptual as well as normative elements, which I will articulate around three theses (or, rather, sets of theses). Let us briefly look at the characteristic features of this view. First, I will establish that authority, rather than coercion, is the key feature of law. In particular, I will argue that, in Hobbes view, legal directives introduce authoritative reasons which replace other considerations to act one way or another and which, as such, are not intended to promote the subjects rational self-interest. Moreover, there are cases in which the sovereign issues directives which require that the subjects act in ways contrary to the balance of reasons (including their rational self-interest). Hobbes legal theory assumes that there is nothing irrational in complying with these requirements. The account that stresses the authority of law smoothly accommodates this point. This is because the commands issued by the sovereign introduce genuine reasons, even if authoritative reasons are of a different kind from normal reasons for action, such as desires, interests or preferences. Next, I will analyze the normative content of Hobbes theory of political obligation. I will show that Hobbes account introduces the idea that subjects are obligated to obey the law in almost all circumstances, so that they have binding political obligations even when obeying the law does not promote their rational self-interest. To account for this theory, I will first argue that Hobbes moral 13 In the footnotes, I will refer to many scholarly works that I found useful for developing my own view, or that further discuss some points or arguments. The references to the books, chapters, and articles that also develop the idea that the directives of the sovereign introduce authoritative reasons for action are included in Chapter 3, footnote 48.

9 Introduction 7 philosophy has the conceptual space required to accommodate the standard notion of moral duty or obligation, 14 which, among other things, states that moral considerations possess a distinctive normativity of their own. Next, I will investigate the relationship between natural and civil law in the commonwealth. Then, I will examine the theory that establishes the sovereign s legal authority and the subjects political obligations. I will argue that Hobbes political philosophy introduces an actual (as opposed to a hypothetical) contractarian theory, which accounts for both the authority of law and the subjects political obligations. 15 As I will show, this theory grounds political obligations which go beyond the promotion of subjects rational self-interest. To further ground this view, I will explain that Hobbes political theory includes a deontological theory of contractual obligation, which states that agents acquire categorical moral requirements after contracting away their natural rights, so that they are morally bound to discharge their obligations independently of their contingent motivational states. Finally, I will move from interpretive to evaluative territory. In the last chapter of the book, I will critically analyze Hobbes theory of promises and contracts made under coercion. 16 Contrary to the standard view, Hobbes argues that promises and contracts 14 I will use the expression moral duty or obligation for general moral requirements. However, I will only use obligation for the specific moral requirement that constitutes the obligation to obey the law. With this, I will follow the standard analysis of the concept of obligation, which states that, among other things, obligations are voluntarily created moral requirements. See, for example, H. L. A. Hart, Are There Any Natural Rights?, The Philosophical Review, 64(2) (1955), p. 179, n. 7; Simmons, Moral Principles and Political Obligations, p. 14. At the same time, I would like to stress here that Hobbes himself does not distinguish between duties and obligations. See, for example, Leviathan, XIV, Hobbes does not use the phrase social contract, something which may give the impression that arguing that he develops a contractarian theory of authority and obligation is at least misleading if not completely mistaken. However, we should bear in mind that the expression social contract and its cognates have a technical meaning. As I use the expression in the context of the present work, a contractarian theory is a normative theory that grounds authority and obligation in promises, contracts, or other voluntary acts that involve personal consent. It is clear that Hobbes account is contractarian in this sense. For instance, Hobbes account of sovereignty states that sovereign power is grounded in the subjects voluntary agreements rather than in sheer force or, for what it matters, in anything else. 16 In this work, I do not make distinctions between contracts that is, reciprocal agreements and unilateral or gratuitous promises. In my view, there are no fundamental differences between them for Hobbes.

10 8 Hobbes on Legal Authority and Political Obligation made under coercion are fully voluntary and so morally binding. Of course, Hobbes has reasons internal to his political philosophy for this thesis, and he also offers different arguments to ground it. Even so, I will argue that the normal wisdom on this issue is basically correct. Now, in my analysis I will grant that one key element emphasized by the Hobbesian view is correct, namely the idea that actions made under coercion (including promises and contracts made under coercion) are normally the result of rational decisions rather than irrational reflexes. However, I will show that this is not sufficient to establish that actions made under coercion are fully voluntary. There are rational actions that are not really voluntary, and coerced actions are typically of this kind, or so I will attempt to demonstrate. 1.2 Method In the book I will use modern conceptual distinctions to reconstruct and analyze several features of Hobbes political and legal philosophy. This analytic approach to the history of philosophy has been vindicated and endorsed by several scholars working in the area, 17 but has also met with resistance from many philosophers and historians alike. 18 We need, then, to justify this way of proceeding, if possible in a principled way See, for example, E. Curley, Introduction to Hobbes Leviathan, in T. Hobbes, Leviathan: with selected variants from the Latin edition of 1668, E. Curley (ed.) (Indianapolis: Hackett, 1994), p. xxiv; T. Sorell, On Saying No to History of Philosophy, in T. Sorell and G. A. J. Rogers (eds.), Analytic Philosophy and History of Philosophy (New York: Oxford University Press, 2004), p See, for example, E. R. Ewin, Virtues and Rights: The Moral Philosophy of Thomas Hobbes (Boulder: Westview Press, 1991), pp. 45 6; I. Hampsher-Monk, A History of Modern Political Thought: Major Political Thinkers from Hobbes to Marx (Oxford: Blackwell, 1992), p. 25, n Here I will assume that analytic interpretations aim to make contributions to the history of philosophy (including the history of political and legal thought). See, for example, M. Frede, Essays on Ancient Philosophy (Minneapolis: The University of Minnesota Press), pp. ix xix. However, some writers argue that such an approach, in fact, excludes these works from the history of philosophy proper. See, for example, G. Hatfield, The History of Philosophy as Philosophy, in Sorell and Rogers, Analytic Philosophy and History of Philosophy, p. 90; S. A. Lloyd, Ideals as Interests in Hobbes s Leviathan : The Power of Mind over Matter (Cambridge: Cambridge University Press, 1992), pp. 3 4.

11 Introduction 9 One influential writer who uses modern formal techniques and conceptual distinctions argues in favor of this approach as follows: Hobbes meant his work to be appreciated as a philosophical argument for absolute sovereignty, not as an exhibit in a museum of seventeenth-century political beliefs. Hence, the use of any tools of logic or any modern conceptual distinctions that will help to advance, clarify, or improve Hobbes s argument for his political theory is fully in accordance with his purposes and true to the spirit of his work. 20 I share Jean Hampton s views about Hobbes purpose as well as her understanding of the spirit of his work. Indeed, Hobbes does not merely express his personal political preferences or commitments in his different works, but rather develops a political theory grounded in what he takes to be relevant points and valid arguments. 21 However, this does not in itself seem strong enough to justify the use of modern conceptual distinctions (and, in Hampton s case, mathematical tools) to analyze Hobbes political and legal treatises. For one thing, it is not obvious that this way of proceeding is correct or even reasonable, for we are dealing with works written more than three centuries ago in a completely different historical and intellectual milieu. Moreover, insofar as Hampton wants to advance, clarify, or improve Hobbes account of absolute sovereignty, her approach risks distorting the textual evidence in order to find the philosophical problems that she believes are important but which Hobbes himself may not have considered so. Clearly, this problem is not limited to 20 J. Hampton, Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986), p. 3; see also Hampton, Hobbes and the Social Contract Tradition, p. 137; J. Hampton, The Intrinsic Worth of Persons: Contractarianism in Moral and Political Philosophy, D. Farham (ed.) (New York: Cambridge University Press, 2007), pp This point is not shared by all interpreters. See, for example, A. Rapaczynski, Nature and Politics: Liberalism in the Philosophies of Hobbes, Locke, and Rousseau (Ithaca: Cornell University Press, 1987), p. 60; Q. Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008), p. xv. Moreover, I acknowledge that some may consider the distinction between genuine personal political preferences, or commitments, and relevant points and valid arguments for philosophical theses inappropriate, irrelevant, or perhaps even unintelligible. For instance, Quentin Skinner s program in intellectual history involves, among other things, repudiating the differences between strict philosophical discourse and other genres, such as literature. See, for example, Skinner, Reason and Rhetoric, pp

12 10 Hobbes on Legal Authority and Political Obligation Hampton s own interpretation, but is rather a characteristic trait of analytic readings as such. 22 We need something more solid on which to build this approach. In my opinion, the most attractive justification for developing an analytic interpretation of Hobbes political and legal philosophy is instrumental. I do not deny the value of a purely historical approach to early modern political and legal philosophy. It seems to me, however, that the intellectual experience of critically engaging with the modern literature shows that the best works on the history of political thought and, especially, the very best studies of Hobbes political theory use modern analytical resources to develop their different accounts. Such articles and monographs make Hobbes work less a museum piece of seventeenth-century beliefs than, rather, a true philosophical theory full of sophisticated arguments and distinctions. In particular, the most important analytical readings do not only provide different accounts of Hobbes political and legal philosophy but also help us to fully understand the characteristic features of Hobbes different points and arguments. In this sense, my view is that the main reason for an analytic interpretation lies in its usefulness: the proof of the pudding is in the eating. 23 Even so, this methodology has its shortcomings. The most pressing worry is that analytic interpretations open the door to all kinds of anachronisms, though this possibility, by itself, does not constitute an argument against such readings. Indeed, anachronism is not a necessary or constitutive component of an account that, say, introduces game-theoretical considerations to explain conflict in the state of nature (as do several analytic interpretations) or construes the way the law affects practical reasoning with the help of a modern analysis of the concept of authority (as I will do in Chapter 3 of this book). 22 As it turns out, this problem may not affect Hampton s particular account. Hampton is both interested in providing an interpretation of Hobbes works as well as in developing a Hobbesian political theory. See Hampton, Hobbes and the Social Contract Tradition, pp. 2, 69. See also G. S. Kavka, Hobbesian Moral and Political Theory (Princeton: Princeton University Press, 1986), p. xiv for a related remark. 23 Even so, in my view, historical analyses and analytical interpretations are not strictly speaking incompatible. Their difference lies in that these approaches have different interests, and so normally differ in the elements that they consider especially relevant. In this sense, historical studies and analytical interpretations may be complementary to each other.

13 Introduction 11 Whether this is the case depends on the specific issues at stake and especially on the characteristic traits of the particular reading under consideration. For myself, I believe that a proper explanation of the way legal directives affect practical reasoning fully justifies the use of modern philosophical distinctions. Moreover, this way of proceeding (perhaps surprisingly) permits appreciation of the fact that certain characteristic features of Hobbes political theory are plausible. This in turn is something which further vindicates the idea that his works are not museum pieces but philosophical treatises full of sophisticated distinctions and arguments. For instance, my analytic reading brings to light the cogency of various aspects of Hobbes account of law, which in turn provides firm support for a theory of political obligation that is reasonable in its form if not in its content. First, we need to bear in mind that theories that highlight coercion as the essential feature of law are not very popular these days. A contemporary legal theorist puts the point as follows: Many [modern] philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law s nature. This view has become more or less the orthodoxy in modern jurisprudence. 24 The orthodoxy described by Nicos Stavropoulos rests on strong arguments. Definitely, H. L. A. Hart s critique of the Hobbesian legal 24 N. Stavropoulos, The Relevance of Coercion: Some Preliminaries, Ratio Juris, 22(3) (2009), pp (For the record, Stavropoulos himself regards coercion as playing a much more relevant role in the explanation of the nature of law.) For his part, Frederick Schauer repudiates the path taken by modern analytical jurisprudence precisely for focusing on essential properties and hence for not assigning coercion a major role in the explanation of law. See F. Schauer, Was Austin Right After All? On the Role of Sanctions in a Theory of Law, Ratio Juris, 23(1) (2010), pp. 1 21; F. Schauer, The Best Laid Plans, Yale Law Journal, 120(3) (2010), pp On the other hand, most political philosophers in contrast to most legal philosophers normally assume that the law is essentially coercive. See C. W. Morris, State Coercion and Force, Social Philosophy & Policy, 29(1) (2012), pp Common sense also seems to hold this view. See W. A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge University Press, 1998), p. 73.

14 12 Hobbes on Legal Authority and Political Obligation theory plays a major role here. 25 Hart shows that, although criminal law partially resembles the model of orders backed-up by sanctions for non-compliance, there are varieties of law that confer powers rather than impose obligations, and that these simply cannot be accommodated within this framework, for powers expand rather than constrain options. 26 Other points introduced by Hart show that a Hobbesian analysis of law cannot account for the continuity of law-making power, nor can it explain the persistence of law over different generations of lawmakers. 27 The account of law apparently introduced by Hobbes thus seems fundamentally misguided, precisely because it highlights coercion as the key feature of law. 28 In addition, Hart s points imply that a Hobbesian account does not succeed in getting a theory of political obligation off the ground. 29 Allegedly, Hobbes account merely states that legal commands change the structure of pay-offs by giving incentives to prevent possible disobedience in such a way as to make compliance something that is in the subjects rational self-interest. However, this is not enough to establish that subjects have binding political obligations. 30 Moreover, several writers argue that a regime in which sanctions for non-compliance provide the only reasons for obeying the law is logically impossible. 31 For instance, Scott J. Shapiro writes that It is simply not possible to have threats all the way down. At some point, someone has to carry out the will of the authority because he feels not only obliged, but morally obligated to do so. 32 Surprisingly, 25 Hart does not argue directly against Hobbes but rather against a broadly speaking Hobbesian view. Although he also argues against some particular points made specifically by Hobbes, his main target is John Austen s account of law. See H. L. A. Hart, The Concept of Law, 3rd edn (Oxford: Clarendon Press, 2012), pp Hart, The Concept of Law, pp , Hart, The Concept of Law, pp , 79. Hart also develops an argument with respect to legal limitations on legislative power, which, obviously, is not relevant in this context. See Hart, The Concept of Law, pp There are some modern attempts to construe a Hobbesian account of law that is safe from Hart s critical points. See R. Ladenson, In Defense of a Hobbesian Conception of Law, Philosophy and Public Affairs, 9(2) (1980), pp However, these attempts do not seem successful. See, for example, Raz, The Morality of Freedom, pp Hart, The Concept of Law, pp See Section 5.2 for further discussion. 31 Even so, Gregory S. Kavka develops an argument to solve the paradox of perfect tyranny. See Kavka, Hobbesian Moral and Political Theory, pp S. J. Shapiro, Authority, in J. L. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (New York: Oxford University Press,

15 Introduction 13 Hobbes comes very close to making the point himself; he writes that if men know not their duty, what is there that can force them to obey the Laws? An army, you l say. But what shall force the Army? 33 The question is rhetorical; Hobbes point is precisely that coercion alone is not sufficient to make people obey. 34 These difficulties challenge the theoretical relevance of Hobbes political and legal philosophy. However, they do so only if we grant that his political and legal philosophy involves nothing other than coercion and rational self-interest. In other words, the different points and arguments raised by Hart and others do not put pressure on my reading of Hobbes political theory. For I construe the directives issued by the sovereign as introducing authoritative reasons, so that the subjects are morally obligated to obey the law independently of whether they also promote their rational self-interest in doing so. In this sense, my analytic interpretation rescues Hobbes political and legal philosophy from the pretty much insurmountable difficulties that, for several writers nowadays, are inherent in his view Strategy Many works in the history of philosophy (including the history of political and legal thought) create space for their own point of view via the description of an alternative reading, which in turn is the object of robust criticism. For instance, an interpretation may be considered wrong or misguided for failing to accommodate the textual evidence, for having absurd or perverse consequences, for relying on mistaken 2002), pp ; see also S. J. Shapiro, Legality (Cambridge and London: The Belknap Press of Harvard University Press, 2011), p Behemoth, I, See also Lloyd, Ideals as Interests, pp. 39, 101 2, , 318; S. A. Lloyd, Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge: Cambridge University Press, 2009), p Admittedly, Hobbes account associates legal directives with commands and so states that law is necessarily imperative. See Leviathan, XXV, 398. This seems difficult to square with the idea that law does not only impose obligations but also confers powers. At the same time, however, Hobbes acknowledges that legal commands not only constrain but also expand subjects options, as powers do. According to Hobbes, the use of Lawes [... ] 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, rashnesse, or indiscretion; as Hedges are set, not to stop Travellers, but to keep them in the way ( Leviathan, XXX, 540; see also De Cive, XIII, 15).

16 14 Hobbes on Legal Authority and Political Obligation empirical assumptions, and so on. In this sense, the standard way to make room for a new account consists in describing a predominant reading and in showing that it involves one or more of these problems, while at the same time arguing that one s own theory does not. This way of proceeding is, for most cases, legitimate. However, I do not think it is not entirely appropriate to the development of a revisionist interpretation of Hobbes political and legal philosophy. For example, it does not seem correct to claim (in the traditional manner) that the account that highlights coercion and rational selfinterest fails to accommodate the evidence. On the contrary, there are important textual resources to ground this view. We need, then, to follow a different strategy. In this book I will proceed as follows. Rather than describing particular readings of Hobbes political theory, I will introduce and therefore interpret the textual evidence in which Hobbes writes in a way that provides firm support for the idea that coercion and rational self-interest play a fundamental role in his political and legal philosophy. 36 This view includes both conceptual and normative dimensions. In the first place, it assumes that coercion is the characteristic feature of law, and it also introduces the further thesis that, given the costs of disobedience, rational self-interest provides subjects with good enough reasons to obey. Once I have introduced the characteristic features of the standard reading, I will proceed to develop and defend my alternative interpretation. This account also includes conceptual and normative dimensions. First of all, this view states that authority is the central feature of law; secondly, it construes political obligation as involving a genuine moral obligation to obey the law, so that subjects have binding political obligations even when obeying the law does not promote their rational self-interest. Hopefully, the description of these two competing accounts of law and political obligation will enable the reader to compare them and get a fair impression of the reasonableness of my view. 37 To conclude, I will provide an interpretation of Hobbes contractarianism which, 36 There is one particular case in which I will not follow this strategy. After providing and interpreting the passages of the corpus which provide support for the idea that coercion and rational self-interest play a fundamental role in Hobbes political theory, I will describe S. A. Lloyd s particular interpretation of Hobbes. See Section See A. Blau, Uncertainty and the History of Ideas, History and Theory, 50(3) (2011), pp

17 Introduction 15 in my view, accounts for subjects political obligations in a way that is independent of the promotion of their rational self-interest. I will rely on Raz s theory of authority to illuminate Hobbes analyses of law and arbitration. However, I will not use Raz s normative theory of authority to account for Hobbes theory of political obligation. The reason is, simply, that Hobbes and Raz s theories diverge in this respect. Raz s service conception of authority justifies the authoritative guidance of actions on instrumental grounds, 38 while Hobbes champions a contractarian theory of legal authority and political obligation. Now, Raz seems to resist the idea that we can distinguish the conceptual explanation from the justification of authority. According to Raz, there is an interdependence between conceptual and normative argument. 39 It is true that Raz s normative theory of authority depends conceptually upon his analysis of the concept of authority; as the converse does not seem to hold, however, it is my view that we can develop a Razian analysis of the way authoritative requirements affect practical reasoning without also granting Raz s normative theory of authority. 40 For this reason, I will limit my use of Raz s theory to explaining Hobbes account of law. To account for the theory that grounds the sovereign s authority, by contrast, instead of relying on Raz s instrumental theory, I will develop a reading of Hobbes contractarian theory, which I will ground in turn in a deontological interpretation of his general theory of contractual obligation. A final clarificatory remark: there is an ongoing controversy among Hobbes scholars regarding the putative evolution of Hobbes political theory in his different works. Famously, Quentin Skinner argues that Leviathan constitutes a treatise fundamentally different from both The Elements of Law and De Cive. 41 In line with this general 38 Raz, The Morality of Freedom, pp. 53 7; Raz, Between Authority and Interpretation, pp The scope of Raz s theory is wide, but it is typically used to account for the putative legitimacy of legal authorities imposing morally binding directives. 39 Raz, The Morality of Freedom, p See also J. Raz, Practical Reason and Norms, 2nd edn (New York: Oxford University Press, 1999), p Skinner, Reason and Rhetoric, pp. 334, 346 7; Q. Skinner, Visions of Politics. Volume III: Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002), pp. 80 1; Skinner, Hobbes and Republican Liberty, pp. xiv xv. See also D. Johnston, The Rhetoric of Leviathan : Thomas Hobbes and the Politics of Cultural Transformation (Princeton: Princeton University Press, 1986), pp , 89 91, Noel Malcolm shows that there are three major differences as well as a series of specific changes between Leviathan and the two previous political treatises. See Malcolm, Editorial Introduction, pp , 32 4,

18 16 Hobbes on Legal Authority and Political Obligation thesis, he develops a comprehensive analysis of Hobbes theory of liberty in the commonwealth, which stresses the differences among the accounts offered in the three political works. 42 In a similar vein, perhaps, we may attempt to develop an evolutionary interpretation of Hobbes theory of legal authority and political obligation, which would then highlight the differences in Hobbes accounts as put forward in The Elements of Law, De Cive, and Leviathan, and perhaps also between these works and Behemoth and the Dialogue. This is not my project here. In my view, the points and arguments related to law and political obligation developed in The Elements of Law, De Cive, and Leviathan are substantially similar. In turn, the philosophical theses that Hobbes introduces in Behemoth and the Dialogue are also fundamentally similar to those developed in the three political treatises. 43 As far as I can tell, the account of the limits of political obligation introduced in Behemoth is the only important exception to this general thesis Textual evidence Hobbes works include several treatises written in English and Latin at different points in time and with different potential readerships in mind. Some brief comments about the way in which I will use the textual evidence are then warranted. Hobbes political works include The Elements of Law, Natural and Politic, completed and circulated in manuscript form in 1640 and printed for the first time in 1650 in two separate books, Human Nature and De Corpore Politico. They also include the third part of the Elementa Philosophiæ, published for the first time in 1642 under the name Elementorum philosophiæ sectio tertia de cive Skinner, Hobbes and Republican Liberty, pp. 52 5, 72 81, 105 7, , 127 9, 132 8, , 154 5, , See also Cromartie, General Introduction, p. lxi; Lloyd, Ideals as Interests, pp ; P. Seaward, General Introduction, in T. Hobbes, Behemoth, or, The Long Parliament, P. Seaward (ed.) (Oxford: Clarendon Press, 2010), pp. 50, According to the theory put forward in this work, the subjects are morally obligated to obey everything commanded by their sovereign, so that there are virtually no limits to their political obligations. See Behemoth, I, The book was published for a second in time in 1647 with the title Elementa philosophica de cive. The 1647 edition includes an additional Preface as well as important remarks and responses to objections to the first version of the book. For this reason,

19 Introduction 17 Finally, they include Hobbes masterwork, Leviathan, published in In addition, Hobbes develops important points and arguments in the historical work, Behemoth, or, The Long Parliament, as well as in the legal treatise, A Dialogue between a Philosopher and a Student, of the Common Laws of England. These two texts differ in key respects from Hobbes political treatises. Behemoth involves a narrative of the course of the English Civil War as well as an account of its causes, and the Dialogue is fundamentally a critical discussion of English law, especially of the sources of English law and of the role of courts and judges, including a critique of Edward Coke s analysis and defense of common law reasoning. 47 In addition, Hobbes wrote these two works after the Restoration of the monarchy in England in 1660, while his three political treatises predate or are contemporary with the English Civil War. Behemoth was published for the first time in unauthorized editions in 1679, 48 and Hobbes some scholars argue that the 1647 version is the true first edition of the book, and that the 1642 version is a draft rather than a finished work. See, for example, P. Crignon, Introduction, in T. Hobbes, Du Citoyen, P. Crignon (trans.) (Paris: GF-Flammarion, 2010), p. 16; A. Rosler, Hobbes y el naturalismo político en Aristóteles, Deus Mortalis. Cuaderno de Filosofía Política, 1 (2002), p. 32; A. Rosler, El enemigo de la república: Hobbes y la soberanía del Estado, in T. Hobbes, Elementos Filosóficos. Del Ciudadano, A. Rosler (trans.) (Buenos Aires: Editorial Hydra, 2010), p. 16. See De Cive, Preface to the Readers, 22 for some evidence. 46 Hobbes also published a Latin translation of Leviathan in 1668, which contains important differences with the English edition of However, Malcolm shows that Leviathan s political argument in contrast with the theological argument remains unchanged in the Latin version. See Malcolm, Editorial Introduction, p According to some writers, Hobbes legal expertise is rather limited. See, for example, A. Cromartie, General Introduction, in T. Hobbes, A Dialogue between a Philosopher and a Student, of the Common Laws of England, A. Cromartie (ed.), in T. Hobbes, Writings on Common Law and Hereditary Right, A. Cromartie and Q. Skinner (eds.) (Oxford: Clarendon Press, 2005), pp. xxvi, xlv xlvi; J. H. Hexter, Thomas Hobbes and the Law, Cornell Law Review, 65(4) (1980), p. 472; Malcolm, Editorial Introduction, p However, several other writers hold the opposite view. See, for example, D. Lee, Hobbes and the civil law: the use of Roman law in Hobbes s civil science, in D. Dyzenhaus and T. Poole (eds.), Hobbes and the Law (Cambridge: Cambridge University Press, 2012), pp. 211, 220 3; R. A. Grover, The Legal Origins of Hobbes s Doctrine of Contract, Journal of the History of Philosophy, 18(2) (1980), pp ; M. Loughlin, The political jurisprudence of Thomas Hobbes, in Dyzenhaus and Poole, Hobbes and the Law, p See T. Hobbes, The Correspondence. Vol. II: , N. Malcolm (ed.) (Oxford: Clarendon Press, 1994), Letters 206, 208.

20 18 Hobbes on Legal Authority and Political Obligation did not in fact finish the Dialogue, which was printed for the first time in 1681, after his death. 49 Admittedly, Hobbes three political treatises and his historical and legal works form a heterogeneous corpus covering different moral, political, and legal issues. However, in this book I will treat these different works as comprising a unitary political theory. 50 As I said in the previous section, in my view, Hobbes account of legal authority and political obligation remains substantially the same in his different works. Moreover, in neither Behemoth nor the Dialogue does Hobbes merely make points or offer arguments which are only of historical interest. Rather, he not only makes points but puts forward philosophical theses, and so these treatises will serve my purposes here as well. 51 Hobbes ideas are sometimes repeated in different places in the same treatises and also in related passages in the different works. 52 It does not seem sensible to quote all the similar passages. But neither does it seem right to make a restrictive use of the textual evidence, in a way that fails to do justice to the whole corpus. I will deal with this issue in the following way. When relying on a point or argument that recurs in Hobbes works, in most cases I will cite the main one offered in Leviathan and (insofar as possible) I will refer in the footnotes to the corresponding or related passages in the same work as well as in The Elements of Law and De Cive, and finally also in Behemoth and the Dialogue and in some other texts as well During his lifetime, Hobbes did not authorize the publication of the Dialogue, which he considered unfinished. Hobbes writes in a letter to John Aubrey that The treatise De Legibus, at the end of it, is imperfect. I desire Mr. Horne to pardon me that I consent not to his motion, nor shall Mr. Crooke himself get my consent to print it ( Correspondence, Letter 208). 50 I will also assume that Leviathan forms a unified treatise, although some scholars argue that in A REVIEW, and CONCLUSION Hobbes makes points that are incompatible with the rest of the text. 51 See also Lloyd, Ideals as Interests, pp , In his edition of The Elements of Law, J. C. A. Gaskin usefully gives the corresponding passages of The Elements of Law, De Cive, Leviathan, and De Corpore. See J. C. A. Gaskin, The Elements of Law Compared with the Contents of Hobbes s Other Works, in T. Hobbes, The Elements of Law, Natural and Politic: Part I, Human Nature, Part II, De Corpore Politico, with Three Lives, J. C. A. Gaskin (ed.) (Oxford: Oxford University Press, 1994), pp. xliv xlvi. 53 In particular, I will use some of Hobbes theoretical works, including De Homine, published in Latin in However, my use of this further evidence is very limited.