Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition

Bobbio 1993

Bobbio 1993

‘The central theme of Hobbes’s political thought is the unity of the state’ (p. xi). With this, Bobbio begins his defence of Hobbes and, following that, his defence of unity. We live in an international state of nature. Despite the auspices of the United Nations the system still functions on a ‘balance of terror’ (p. xii), so the central question for those seeking perpetual peace, on Bobbio’s account, is the one that has troubled Natural Law theorists for centuries: How do we get from the state of nature to a civil society?

In chapter 1 Bobbio schematises the two main traditions within political philosophy that deal with this problem – Natural Law theory (Hobbes, Locke) and what Bobbio terms the Aristotelian tradition (Aristotle, Bodin, Althusius, Marsilus of Padua, Sir Robert Filmer). The former typically present two stages of the state formation process – the state of nature and civil society – and use a social contract or similar device to justify the move into civil society. The Aristotelian tradition, contrariwise, presents the family as the model for state formation. This tradition holds that the family is the natural social group in the state of nature – proof that humans have the ability to cooperate as an organisation, however small. Families then form villages, and villages in turn form civil societies. The main idea separating the two traditions is that for the Aristotelian tradition the state is natural while for Natural Law theorists the state itself is a synthetic product of human reason. The ‘reactionary’ charge against Natural Law theory, as Bobbio stresses, is that the state is only synthetic or unnatural when viewed as a product of an imaginary contract between imaginary free and equal individuals (pp. 20-21).

In chapter 2 Bobbio addressed Hobbes’ political philosophy. ‘Two great antitheses dominate the political thought of all times: oppression-freedom, and anarchy-unity’, Bobbio claims (p. 29). Hobbes’ thought deals foremost with the latter. Bobbio states: ‘the ideal which [Hobbes] defends is not liberty against oppression, but unity against anarchy’ (ibid.). For Hobbes, unity is conducive to civil peace, anarchy to civil war. The English Civil Wars are foremost in Hobbes’ mind when he discusses anarchy. For Hobbes, Parliament’s demand for concessions from Charles I caused the Civil Wars. The demands for divided government, whereby King is held to account by Parliament (where Rex is not lex) and subject to laws, caused Charles I to wage war on his own people.

Bobbio extracts the central aspects of Hobbes’ theory of state from his three principal works of political philosophy – Elements of Law, De Cive and Leviathan – and compares these to other Natural Law theories: the state of nature, the social contract and civil society. Bobbio’s best analysis is of Hobbes’ social contract, wherein he argues that Hobbes merges two traditional doctrines of state formation.

Natural Law theorists present one of two types of social contract. The first type is the pactum societatis or simply the pact of union or association. Through the pact of union contracting parties form an association in order to move themselves from the state of nature and into civil society. Under such a pact of union the covenanting parties agree to not act on certain rights that they possess in the state of nature on the proviso that all other covenanting parties do the same. For example, in the state of nature my principal right is to protect my life. Given that I need to take possession of property to ensure I can feed and shelter myself, and given the scarcity of resources, at times protecting my life may involve stealing from others. In the state of nature, therefore, I have the right to steal. Furthermore, understanding that I have the right to steal, I understand that others have the right to do the same. Therefore, I cannot be sure that another person will not come in the night and steal my goods, killing me if it is necessary. Accordingly, I live in constant fear of violent death. This is a legitimate fear, and the best way for me to ensure that it doesn’t happen is to subject as many people to my control as possible. In the state of nature I have the right to pre-emptively subdue others, by killing them if necessary, to protect my fundamental right to life. A pact of union, therefore, has all covenanting parties, which would have to include a critical mass of individuals to be effective, forfeit their right to pre-emptively kill others on the proviso that others, likewise, do the same.

The second type of pact which individuals may form in order to exit the state of nature is the pactum subjectionis or pact of subjection. The pact of subjection differs from the pact of union. Instead of agreeing between ourselves merely to not exercise some of the rights we possessed in the state of nature, under a pact of subjection we agree to forfeit our right to exercise force to a third party, an artificial body. This artificial body becomes the state. The pact of subjection grants the state a monopoly on violence. The state has the right to exercise this violence against anybody who, forgetting the conditions upon which they entered the pact, commits violence against another member of the pact, i.e. a fellow citizen.

Bobbio contends that Hobbes merges the pact of union and the pact of subjection (p. 48). Hobbes’ social contract takes the form of a pact of union in that it is a pact between individuals for their mutual benefit, but in content it is a pact of subjection. Bobbio’s contention turns on the covenanting parties’ inability to exit the contract. In other social contract theories the state is party to the contract. Accordingly, if the state breaches the terms of the pact then the people have a right to form a new government and kick out the old one. Such pacts only grant power to the third party on the provision that the third party keeps its end of the bargain, i.e. protects our lives and punishes those contracting parties who commit violence against others. As Bobbio notes (p. 52-3), this is the very situation that Hobbes was addressing. The Parliament took the fact that Charles I waged war on his own people as a breach of the social contract and as grounds for forming a new government – a republic. Though not presented by Bobbio, proof of this motivation can be found in the transcripts of the trial of Charles I [1]. What Hobbes argues, contrary to this position, is that the state is not a contracting party. The social contract or pact is between the individuals in the state of nature and establishes the artificial body of the sovereign; the sovereign cannot be a party to the contract because the sovereign does not exist until the contract exists. Consequently, by arguing for the overthrow of the sovereign the contracting parties are really arguing to exit the pact that established the sovereign. The only people breaching the pact, therefore, are those who wish to overthrow the sovereign. To argue that the sovereign has breached the pact is pure nonsense because the sovereign is not a party to the pact formed between individuals in the state of nature. Thus, what in form is a pact of union is in content an absolute pact of subjection. The only way that any individual can exit the pact is if his or her life is in direct threat. To ignore such a threat would be against the fundamental right to protect one’s life, which was the reason for entering the pact in the first place. However, because one can in no circumstances overthrow the sovereign, the only legitimate way to do this is to flee the state such as Hobbes did.

This is the point at which Hobbes is understood not as a natural law theorist proper but as an ‘ethical legalist’ (Bobbio, p. 57). Hobbes uses natural law theory to get from the state of nature to civil society, but once civil society is formed the sovereign is the source of all right and wrong. The fact that the sovereign is not a party to the social pact and the fact that the pact is formed by the (now) citizens means that any law made by the sovereign is a product of the contract entered into voluntarily by the citizens. Thus Hobbes states that ‘every subject is author of every act the sovereign doth’ (Leviathan, XXI quoted in Bobbio, p. 55). Bobbio rightly points out that what the sovereign commands may not seem just or according to right reason, but post-contract what is just is what the sovereign commands (p. 57). Consequently, nothing the sovereign can do to a subject can properly be called unjust (Leviathan, loc. cit.).

[1] Just before sentencing Charles I, John Bradshaw, Lord President of the High Court of Justice, proclaimed to Charles (Howell 1816, p. 1013; see also Robertson 2005):

…Sir, your Oath, the manner of your Coronation, doth shew plainly, that the kings of England, although it is true, by the law the next person in blood is designed; yet if there were just cause to refuse him, the People of England might do it. For there is a Contract and a Bargain made between the King and his People, and your Oath is taken: and certainly, Sir, the bond is reciprocal; for as you are Liege Lord, so the Liege Subjects. And we know very well, that hath been so much spoken of, Ligeantia est duplex. This we know now, the one tie, the one bond, is the Bond of Protection that is due from the sovereign; the other is the Bond of Subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! Subjectio trahit, &c.

Bobbio, N (1993), Thomas Hobbes and the Natural Law Tradition, trans. Daniela Gobetti, University of Chicago Press, Chicago.

Hobbes, T (1996 [1651]), Leviathan, rev. student edn., R Tuck (ed.), Cambridge University Press, Cambridge.

Howell, TB (ed.) (1816), A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, vol. IV (of XXI), TC Hansard, London.

Robertson, G (2005), The Tyrannicide Brief, Chatto & Windus, London.

2 thoughts on “Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition

  1. Excellent!! thanks a lot for the words of John Bradshaw!

    so may i dare to get in:

    ” To argue that the sovereign has breached the pact is pure nonsense because the sovereign is not a party to the pact formed between individuals in the state of nature. ”

    Data maxima venia, machina machinarum that it is, the state, upon creation, has imperium from the subjectionis pactum, but so it’s obligations to protect the subjects (societatis) and the law (uniones). And it can breach them. And get thrown it will if it abuses much and long enough – tiranny ex parte exerciti.

    And yes, the state is a natural thing too. The rationalia to it’s evolution from the family to the tribe to the cives to the state to the federation (taking place right now in UE) and to the future UN of Earth is exactly as you and Hobbes show in this marvelous entry.

    thanks again

  2. to creso andrade:
    no, Hobbes is absolutely explicit:

    «Secondly, Because the Right of bearing the Person of them all, is given
    to him they make Soveraigne, by Covenant onely of one to another, and
    not of him to any of them; there can happen no breach of Covenant on the
    part of the Soveraigne; and consequently none of his Subjects, by any
    pretence of forfeiture, can be freed from his Subjection» (Hobbes, Leviathan, c. XVIII).

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