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one” may be one person or many, a highly intricate institution or a set of
procedures developed long ago over many years. We must, however, if we
are to avoid barbarism, agree to accept certain decisions simply because
we recognize them to have been authorized. Though we may justify the
decisions to which we submit in any number of ways, we cannot find an
ultimate sanction for what we accept that no man can rationally dispute.
96 The modern quest

Therefore, at the base of any system of law, if we push it to its founda-
tions, lies a “decision” that cannot be indisputably justified.
By “law” then Hobbes means “Civil Lawes,” which bind the members
of a “Common-wealth.” A commonwealth is constituted by those who
agree to authorize a sovereign, that is, to recognize the right of a sovereign
to speak for all of them. For Hobbes, as for all of his Greek and medieval
predecessors, law pertains to a community that is created by human
artifice. Unlike his predecessors, Hobbes explicitly makes the authoriza-
tion of a representative of the commonwealth, that is to say, a sovereign,
the foundation for this community. Because in authorizing a sovereign,
the members of the commonwealth oblige themselves to obey the laws
that he makes, law should be understood as a command and not a
counsel: “Counsell, is where a man saith, Doe, or Doe not this, and
deduceth his reasons from the benefit that arriveth by it to him to whom
he saith it.”6 Since the man to whom the counsel is addressed stands to
be benefited by that counsel, he remains free to reject it as, in Hobbes™s
view, each man is, by nature, the ultimate judge of what will promote his
own good. But law is a command rather than a counsel because the
reason for obeying a law is nothing other than that it has been issued by
someone whose authority to make law is recognized by the person com-
manded. Law is accordingly defined by Hobbes as follows: “CIVILL
LAW, Is to every Subject, those Rules, which the Common-wealth hath
Commanded him, by Word, Writing, or other sufficient Sign of the Will, to
make use of, for the Distinction of Right, and Wrong; that is to say, of what
is contrary, and what is not contrary to the Rule.”7 In order that the
members of the commonwealth may be able to discern what constitutes
an authentic law, there must be agreed upon signs for identifying a law.
And an existing law can be abrogated only by a law forbidding it to be
executed, for only the sovereign power can repeal law and make new ones
whenever he chooses.
Like his predecessors, Hobbes holds that it is of the essence of law to be
written and published, but the reason he emphasizes this requirement is
that law must display clear signs of having been derived from the will of
the sovereign. For otherwise, any man™s private will might claim the force
of law. Being written is essential to law in order to indicate that all laws
“have their Authority, and force, from the Will of the Common-wealth;
that is to say, from the Will of the Representative; which in a Monarchy is
the Monarch, and in other Common-wealths the Soveraign Assembly.”8
Hobbes accordingly denies that because a rule appears in “the Books of


6 7 8
Ibid., 183, 176. Ibid., 183. Ibid., 186.
Thomas Hobbes 97
Lawyers of eminence” or in the opinions of judges, it constitutes law. That
is not evidence of its having been willed by the sovereign. To ensure the
authenticity of law is the reason for “the publique Registers, publique
Counsels, publique Ministers, and publique Seales; by which all Lawes
are sufficiently verified.”9 These enable everyone to consult the record of
the law to discover whether what he proposes to do is permitted by the
law or whether what he takes to be an injury is a violation of the law.
Similarly, with officers of the law, their authority has to be verified by a
written commission or a public seal.
Hobbes did not therefore accept that the judicial decisions that consti-
tute common law are law, but insisted on the subordination of the
common law (and the legal profession) to statute law. He denies what
some defenders of common law have argued, that natural reason, art, or
divinely informed reason are the sources of common law “ they can only
be the pronouncements of private individuals. Nor is it “the singularity
of Process used in any Court; that can distinguish it so as to make it a
different Law from the Law of the whole Nation.”10 Against Sir Edward
Coke™s identifications of Lex with Jus, which Coke said constitute the
Common Law, Hobbes argues that Lex and Jus must be distinguished,
for only “Law obligeth me to do, or forbear the doing of something;
and therefore it lies upon me an Obligation.” But justice has to do with
rights, and “my Right is a Liberty left me by the Law to do any thing
which the Law forbids me not, and to leave undone any thing which
the Law commands me not.”11 And in any case, a judge™s “ long study,
observation, and experience” cannot ensure the justice of his decisions:
“For it is possible long study may encrease, and confirm erroneous
Sentences: and where men build on false grounds, the more they build,
the greater is the ruine: and of those that study, and observe with equall
time, and diligence, the reasons and resolutions are, and must remain
discordant. . .”12
Moreover, “before there was a Law, there could be no Injustice, and
therefore Laws are in their Nature Antecedent to Justice and Injustice,
and you cannot deny but there must be Law-makers, “ before there [were]
any Laws . . . I speak of Humane Justice . . .”13 What rendered Edward
Coke a judge is not that he “had more, or less use of Reason” but
“because the King made him so.” The law of which Coke speaks is “not
the Reason, Learning, or Wisdom of the Judges” but the king™s reason:

9
Ibid., 189.
10
Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of
England, ed. Joseph Cropsey (Chicago: University of Chicago Press, 1971), 97.
11 12 13
Dialogue, 73. Leviathan, 187. Dialogue, 72“73.
98 The modern quest

“the Kings Reason, when it is publickly upon Advice and Deliberation
declar™d, is that Anima Legis, and that Summa Ratio, and that Equity
which all agree to be the Law of Reason, is all that is, or ever was Law
in England, since it became Christian, besides the Bible.”14
The only true common law is the king™s prerogative, a doctrine for
which Hobbes finds support in Bracton: “No Man may presume to
dispute of what he [the sovereign] does, much less to resist him. You see
by this, that this Doctrine concerning the Rights of Soveraignty so much
Cryed down by the long Parliament, is the Antient Common-law, and
that the only Bridle of the Kings of England, ought to be the fear of
God.”15 The theme is the same throughout, that wherever anyone other
than the sovereign is permitted to make law, there is bound to be disagree-
ment, contradiction, and destruction of civil peace, and that law is not a
product of wisdom or reason, but of the will of the sovereign.
Hobbes recognizes that some laws are not made by the sovereign but
are customs that have acquired the authority of law through long
usage. But he maintains that what gives a custom the character of law is
not the length of time that it has been in force, but the fact that the silence
of the sovereign signifies his consent. However ancient the custom that
has been recognized as law, the sovereign remains free to repeal it if
he should find the custom unreasonable. And the “Judgement of what is
reasonable, and of what is to be abolished, belongeth to him that maketh
the Law, which is the Soveraign Assembly, or Monarch.”16 What matters
is not who first enunciated the law, “For the Legislator is he, not by whose
authority the Lawes were first made, but by whose authority they now
continue to be Lawes. And therefore where there be divers Provinces,
within the Dominion of a Common-wealth, and in those Provinces diver-
sity of Lawes, which commonly are called the Customes of each severall
Province, we are not to understand that such Customes have their force,
onely from Length of Time; but that they were antiently Lawes written, or
otherwise made known, for the Constitutions, and Statutes of their So-
veraigns; and are now Lawes, not by vertue of the PrÆscription of time,
but by the Constitutions of their Present Soveraigns.”17
On the adjudication of laws, Hobbes appears to take two different views.
He asserts that all law needs to be interpreted, explaining that if written
laws are short, the ambiguity of a word may lead to misinterpretation; if
long, the ambiguity may affect many words. Therefore, the only way to
understand a law properly is to grasp the final cause for which it was
made, and that knowledge lies with the legislator. In saying this, Hobbes,


14 15 16 17
Ibid., 62. Ibid., 74. Leviathan, 184“85. Ibid., 185“86.
Thomas Hobbes 99
consistent with his general view, makes the will of the sovereign the
ultimate criterion of a correct decision. But Hobbes denies that in inter-
preting the law, the judge ought to look to “the letter of the Law” because
that would allow any and every construction to pass as law. Instead,
Hobbes argues that the judge must interpret the words of the
law according to “the Intention of the Legislator.”18 The obligation of
the judge is to “have regard to the reason, which moved his Sovereign to
make such Law” and shape his decision accordingly. For only then will
the judge™s decision be that of his Sovereign, as it should be, and not his
own.19 Hobbes even suggests that the judge may sometimes without
danger “recede” from the letter of the law by consulting the preamble to
discover the meaning and sense of the law, the time when it was made, and
the “incommodities” for which it was made.20 The oddity here is that, by
allowing judges so much latitude to depart from the letter of the law, and
by ignoring the difficulty that had so preoccupied his successors, i.e., of
discovering the intentions of the legislator, Hobbes ignored the danger of
giving judges, rather than authorized legislators, the power to make law.
Nor did Hobbes concern himself with the danger of destroying the
stability of law by ignoring precedent. He regarded respect for precedent
as a lamentable attribution of infallibility to judges and a readiness to
forget that interpreting the law should always consist in divining the will
of the sovereign.
Hobbes appears to encourage an even more extreme laxity in adjudi-
cation, which allows the judge to cease acting as his sovereign™s voice,
when he says that in the act of adjudicating, the judge must consider what
is “consonant to natural reason, and Equity; and the Sentence he giveth,
is therefore the Interpretation of the Law of Nature.” Hobbes does add
that this interpretation is not the judge™s private opinion but given by
“Authority of the Soveraign, whereby it becomes the Soveraigns Sen-
tence.”21 And here, too, Hobbes emphasizes that as a judge may err in
his judgment of equity, his successors are not bound by his decisions. The
general effect, however, is to make the judge™s decision rest on his view of
equity rather than on interpretation of the written law. There is a sugges-
tion of a reconciliation of the two views when Hobbes says, “For the
literall sense is that, which the Legislator intended, should by the letter of
the Law be signified. Now the Intention of the Legislator is alwayes
supposed to be Equity: For it were a great contumely for a Judge to think
otherwise of the Soveraigne.” But then Hobbes opens a Pandora™s box


18 19
Ibid., 194, 186“87. Ibid., 187.
20 21
Ibid., 193“95. Ibid., 191“92.
100 The modern quest

of judicial arbitrariness “ which his successors have duly exploited “ by
adding that where the “Word of the Law does not fully authorise
a reasonable Sentence,” the judge may “supply it with the Law of
Nature.”22
In the end, Hobbes remains uncharacteristically indecisive on the sub-
ject of adjudication: “the incommodity that follows the bare words of a
written Law, may lead him [the judge] to the Intention of the Law,
whereby to interpret the same the better; though no Incommodity can
warrant a Sentence against the Law. For every Judge of Right, and
Wrong, is not Judge of what is Commodious, or Incommodious to
the Common-wealth.”23 But the ambiguity in Hobbes™s view of adjudi-
cation seems less surprising in view of later discussions of law, which
devoted themselves with great sophistication to this question first raised
by Hobbes, without succeeding in arriving at a coherent answer.
As Hobbes is deliberately rejecting the cosmology of his predecessors,
he considers, as they do, the relation of civil to natural law. He calls all
unwritten laws “Laws of Nature.” For if a law obliges everyone, and
is not written or published or proclaimed so that it may be authenticated,
it can only be a law of nature. That is the only kind of law that can
be recognized by and be agreeable to the reason of every man. But the
law of nature, as Hobbes understands it, amounts only to one sentence
that is necessarily “approved by all the world:” “Do not that to another,
which thou thinkest unreasonable to be done by another to thy selfe.”24
Understood in this fashion, the unwritten law of nature (apart from
describing what men are) may fill in what the law leaves unsaid.
Laws of nature are not, however, properly laws. They are rather
names for qualities that dispose men to peace. Only when such qualities
are defined after a commonwealth is established do “natural laws”
become true laws. In authorizing statutes and officers to enforce them,
the sovereign decides what constitutes justice and makes rules that the
members of the commonwealth are obliged to obey. In this sense, Hobbes
grants that the law of nature is part of the civil law. But he also describes
the civil law, not so paradoxically as it might seem, as a part of the law
of nature because it is a dictate of the law of nature that in order to
maintain peace, men have to agree with one another to authorize a
sovereign and to obey his laws. Thus, although a judge does not receive
written instructions to decide in keeping with the will of the sovereign,
he is obliged to do so by the law of nature because otherwise the
commonwealth could not survive.


22 23 24
Ibid., 194. Ibid., 194“95. Ibid., 188.
Thomas Hobbes 101
To other questions, which among his predecessors had received hardly
any attention, Hobbes gives more definite answers. These are questions
that concern the legislator less than the judge, questions about what may
excuse or extenuate crimes and how to assess their seriousness. Hobbes
emphasizes first of all that a crime must be a violation of the law which
appears in an outward act. There may be violations which are not of this
nature, he acknowledges, violations which consist in intentions, but these
he identifies as “Sin,” or peccatum. But this he considers a broad category
for different kinds of misbehavior: “All Crimes are indeed Sins, but not all
Sins Crimes. A Sin may be in the thought or secret purpose of a Man, of
which neither a Judge, nor a Witness, nor any Man take notice; but a
Crime is such a Sin as consists in an Action against the Law, of which
Action he can be accused, and Tryed by a Judge, and be Convinced, or
Cleared by Witnesses.” Where the civil law ceases, both sin and crime
cease and there is no release from the war of each against all. For where
there is no sovereign power, there can be no law to define what constitutes
a crime, and each man must protect himself by his own powers. In
keeping with his view of civil associations and law as a human artifact,
Hobbes points out that what constitutes crime will vary from one com-
munity to another: “Many things are made Crimes, and no Crimes, which
are not so in their own Nature, but by Diversity of Law, made upon
Diversity of Opinion, or of Interest by them which have Authority.”25
His strictness about equating law with written rules does not prevent
Hobbes from exploring possible qualifications on the enforcement of
those rules in a discussion of “excuses.” He considers ignorance of the
law a good excuse if the law has not been made sufficiently public and
clear. But ignorance of the sovereign power in a man™s native place of
residence is no excuse since every person ought to take notice of the power
which protects him and enables him to live in peace. Ignorance of the
penalty attached to violation of a law is no excuse because when a man
voluntarily performs an action, he implicitly accepts responsibility for all
its consequences. The only total excuse for a crime is something which
removes the obligatoriness of the law. Thus anyone who is incapable of
knowing the law, such as children or idiots, cannot be obliged by the law.
If a man is imprisoned by an enemy whom he must obey or suffer death,
his obligation to obey the law ceases, for everyone has a right, according
to the law of nature, to preserve his life as best he can when the sovereign
has failed to protect him. A starving man who cannot survive without
violating the law is equally excused, for example, if in a famine he steals
the food he cannot buy.26

25 26
Dialogue, 78“79. Leviathan, 208.
102 The modern quest

But another sort of excuse sanctioned by Hobbes is less obvious:
He argues that if a man or assembly that holds sovereign power, or
someone authorized by the sovereign, commands the doing of something
that conflicts with an existing law, the subject is excused from obeying
because “when the Soveraign commandeth any thing to be done against
his own former Law, the Command, to that particular fact, is an abroga-
tion of the Law.”27 Here, as in his remarks on adjudicating according to
the intention of the legislator rather than the letter of the law, Hobbes
overlooks the possibility of disagreement about whether the new law
conflicts with established law, and the need for an authorized settlement
of such disputes. However, in saying that when the sovereign power
grants a liberty that is inconsistent with the sovereign™s duty to protect
the subject, the subject may rightfully object, Hobbes does indirectly take
into account the possibility of such disputes. For the reason why the
subject has a right to disobey is that the sovereign, by making conflicting
laws, is failing to defend him. Besides, the right to disobey is not a right to
resist authority but to question, in accordance with established proced-
ures, whether it has been rightly exercised. “But if he not onely disobey,
but also resist a publique Minister in the execution of it, then it is a Crime;
because he might have been righted, (without any breach of the Peace),
upon complaint.”28 The distinction between “a right to disobey” and
active resistance to officers of the law provides an important insight into
Hobbes™s concept of authority.
Finally, Hobbes distinguishes different degrees of crime according to
the “malignity of the Source, or Cause,” the “contagion of the Example,”
the “mischiefe of the Effect,” and the “concurrence of Times, Places, and
Persons.”29 Thus he argues that a crime which has been consistently
punished is a greater crime than one that has been committed frequently
with impunity, because all such cases offer “hopes of Impunity, given
by the Soveraign himselfe.”30 A crime arising from a sudden passion
should be treated more leniently than one long premeditated because in
the latter the perpetrator had plenty of time to consider the law and the
consequences of his action, and “to rectifie the irregularity of his Pas-
sions.”31 Nevertheless, the fact that crime arises from a sudden passion
cannot excuse it. Crimes against the commonwealth are greater crimes
than the same acts done to private men because the damage affects all
members of the commonwealth. On crimes against private men, Hobbes
would have the seriousness of the crime judged according to the damage
caused as estimated by the common opinion of men.32

27 28 29
Ibid., 109. Ibid., 109. Ibid., 109.
30 31 32
Ibid., 210. Ibid., 210. Ibid., 212“13.
Thomas Hobbes 103
Just as there is no natural or necessary set of crimes, so there is
no “natural rational criterion” for the punishment to fit the crime.33
Instead Hobbes advocates “ and is the first to elaborate “ the deterrence
theory of punishment. He defines punishment as “an Evill inflicted by
publique Authority, on him that hath done, or omitted that which is Judged
by the same Authority to be a Transgression of the Law; to the end that the
will of men may thereby the better be disposed to obedience.”34 For Hobbes,
punishment is intrinsic to the rule of law because it is intrinsic to the
sovereign™s prime duty of maintaining civil peace. For where men enter
civil society they do not lose their right to preserve themselves, but hand
over that right to the sovereign when they authorize or leave to him (and
to the sovereign power only) to act for them in preserving peace, thereby
agreeing to refrain from taking such action themselves. That the members
of the commonwealth should be subject to pain for violating the law is
essential because the passions are ever active, whereas reason to resist
them is not. Consequently, if the passions can be gratified with impunity
they will be indulged. Thus, “excepting some generous natures,” it is fear
that induces most men to observe the laws.35 The only exception is a crime
committed in self-defense: “A man is assaulted, fears present death, from
which he sees not how to escape, but by wounding him that assaulteth
him; If he wound him to death, this is no Crime; because no man is
supposed at the making of a Common-wealth, to have abandoned the
defence of his life, or limbse, when the law cannot arrive in time to assist
him.”36 But one who breaks the law because he fears an attack, for which
he has had time to seek protection from the sovereign power, or because
he wishes to revenge an insult that the law has not seen fit to define as a
crime, commits a crime for which there is no excuse because “the hurt is
not Corporeall, but Phantasticall.”37
Hobbes takes care to distinguish punishment from the mere infliction
of evil. He defines punishment strictly as evil imposed by a public
authority, which punishment is imposed only after a public hearing that
authorizes it for an action defined by law as a crime. Any other evil,
whether imposed by a public or a private source, is merely a hostile act
inflicted by a usurped power. Nor does any failure to receive some desired
public benefit constitute punishment because such a failure merely leaves
the person™s circumstances unchanged and involves no infringement of
law. Moreover, evil inflicted for any purpose other than “disposing the
Delinquent, or (by his example) other men, to obey the Lawes, is not


33 34 35
Dialogue, 39. Leviathan, 214. Ibid., 206.
36 37
Ibid., 206. Ibid., 206“7.
104 The modern quest

Punishment; but an act of hostility.”38 In short, punishment must be
administered only in order to deter violations of the law, and only
according to established legal procedures. Hobbes takes care as well to
distinguish punishment from pain that may merely serve as the “Price” of
a crime. If the harm inflicted by punishment does not exceed the benefits
enjoyed as a result of the crime, Hobbes points out, it necessarily becomes
“rather the Price, or Redemption, than the Punishment of a Crime.”39
For evil that does not exceed the good achieved by the criminal action
cannot deter anyone from crime. On the contrary, it may encourage many
to disobey the law.
That only harm inflicted to deter men from violating the law of the
commonwealth constitutes punishment follows from Hobbes™s insistence
throughout that punishment is constituted by evil inflicted in order to
preserve obedience to the law and hence the commonwealth. Harm im-
posed on an innocent man, or on one who is not a subject of the
commonwealth, even though it be done for the benefit of the common-
wealth, does not constitute punishment. And hostilities against enemies of
the commonwealth, who are not members of the commonwealth, consti-
tute war. But Hobbes qualifies the strict logic of his argument when he
says that in hostilities by subjects who deny the authority of the sovereign,
that is, who commit treason, the rebels may be made to suffer whatever
evil the sovereign power chooses to impose on them. This follows from
the law of nature by which individuals are obliged to constitute a com-
monwealth to preserve themselves and which consequently justifies hos-
tility against destroyers of the commonwealth. By denying his subjection
to the sovereign, the rebel denies the law and therefore such punishment
as the law ordains. Thus, he ceases to be a member of the common-
wealth and should be treated as an enemy rather than as a criminal. For
punishments set down in the law pertain only to subjects, whereas those
who “having been by their own act Subjects, deliberately revolting, deny
the Soveraign Power”40 declare themselves not to be members of the

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