Thomas Hobbes' A Dialogue between a Philosopher and a Student of the Common Laws of England lays out the basis of Hobbes' famous positivist philosophy of law. The dialogue opens with the claim of a lawyer in the tradition of Edward Coke that the genius of the common law consists in its discovery of an "artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason" (4). The collective wisdom of English judges across time can discover a more complete vision of equity and justice than anything an individual jurist is capable of.
Hobbes' philosopher makes two replies. First, while granting that the law requires much study, he denies the metaphysical coherence of "artificial reason." There is no such thing, there is only the "natural reason" of the judges. But more fundamentally, he insists that the implicit claim of a connection between reason and law manifests a complete non sequitur: "it is not wisdom, but authority that makes law" (5). Law is simply the command of the sovereign. As Hobbes explains some pages later:
Statutes are not philosophy, as is the common-law, and other disputable arts, but are commands or prohibitions, which ought to be obeyed, because assented to by submission made to the Conqueror here in England, and to whosoever had the sovereign power in other commonwealths (24).
He offers a clean definition of law: "a law is the command of him or them that have sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do." (26)
What then does Hobbes mean by command? We get the clearest statement in chapter 14 of De Cive through Hobbes' distinction between counsel (advice) and command (law):
They confuse law with advice when they think that it is the monarch's duty not only to listen to advisors but also to obey them ... The distinction between advice and law is to be sought in the difference between advice and command. ADVICE is an instruction or precept in which the reason for following it is drawn from the matter itself. But a COMMAND is an instruction in which the reason for following it is drawn from the will of the instructor. For one can properly say: This is what I want, this is my order, if will stands for reason. But since laws are obeyed not for their content, but because of the will of the instructor, law is not advice but command, and it is defined thus: LAW is a command of that person (whether man or council) whose instruction is the reason for obedience. (153-4 in Tuck edition)
As I say, a very clear statement. A command is an instruction that we follow because it is the will of the sovereign. We take the will of the commander to be our reason for obedience. If we choose to follow a piece of advice, by contrast, we do so because of the sound reason of the content of the advice. The reason to obey a command is content-independent. The reason to follow advice is content-dependent.
Interestingly, however, Hobbes appears to offer a somewhat different account in chapter 25 of Leviathan. There he provides the following definitions of counsel and command:
COMMAND is, where a man saith, Doe this, or Doe not this, without expecting other reason than the Will of him that says it. From this it followeth manifestly, that he that Commandeth, pretendeth thereby his own Benefit: For the reason of his Command is his own Will onely, and the proper object of every mans Will, is some Good to himselfe.
COUNSELL, is where a main saith Doe, or Doe not this, and deduceth his reasons from the benefit that arriveth by it to him to whom he saith it. And from this it is evident, that he that giveth Counsell, pretendeth onely (whatsoever he intendeth) the good of him, to whom he giveth it. (176 in Tuck edition)
This is not incompatible with the definition given in De Cive. Indeed, Hobbes notes here that the one receiving a command expects no reason for obedience beyond the will of the commander. So again, the ground of our reason to obey a command consists simply in our reason to obey the sovereign will.
Still, these definitions are interestingly different in emphasis. The key contrast Hobbes highlights in Leviathan concerns the implicit beneficiary of counsel vs. command. Command aims only at the good of the commander, whereas counsel aims ostensibly at the good of the commanded. Curiously, Hobbes goes on to suggest that this difference in benefit is the source of practical obligation. The reason we are not obligated by counsel is that rejecting the counsel only harms us: "he cannot be obliged to do as he is Counselled, because the hurt of not following it, is his own" (177). Counsels are thus optional because they only concern us. Commands, by contrast, appear to be obligatory because refusing a command harms the commander.
So is this a further explanation for why we have decisive reason to obey the sovereign will? Our duty to obey a command derives from our duty not to harm the sovereign? It would appear so.
Hobbes goes on to clarify that a counsel becomes a command if we covenant to form a sovereign and therefore to obey the commands. But strictly speaking for Hobbes, once we have so covenanted we are the sovereign. So now it is in fact our command. This, I take it, is the upshot of the famous treatment of representation in chapter 16 of Leviathan. Once we alienate our will and reason to the sovereign, the distinction between the interest of sovereign and subject dissolves. Sovereign command is binding because it actually expresses our will and therefore embodies our interest.
Hobbes goes on to claim that scripture confirms his conceptual distinction between counsel and command. He draws on (and in some ways subverts) the traditional Christian distinction between the obligatory precepts of the law and the supererogatory counsels of perfection. He tells us that we are duty bound to obey the Decalogue because it is a command. The reason for our obedience consists simply in the fact that we are obliged to obey the will of God, our sovereign. But curiously, Hobbes does NOT say that refusal to obey the Decalogue somehow harms God. Does that then contradict the definition?
Hobbes does say, however, that the counsels of perfection--the counsel to sell all one has, for example--are not obligatory "because the reason for which we are to do so is drawn from our own benefit; which is this, that we shall have Treasure in heaven" (178-9). So again, because instructions of this kind only benefit us, we are free to repudiate them. Even an apparent command like "Repent, and be Baptized in the name of Jesus," Hobbes claims, is merely an act of optional counsel. Again, this is because "the reason why we should do so, tendeth not to any benefit of God Almighty" (179).
This is a bit confusing. Presumably our refusal to obey the Decalogue does not harm God either. So why should the Decalogue be binding?
I suppose the more general confusion here is that in Leviathan Hobbes appears to be offering a reason for why the will of the sovereign is a decisive source of practical obligation. He suggests that our duty to obey sovereign command derives from our duty not to harm the sovereign. Yet the scriptural example does not obviously provide good reason to see a connection between obeying the sovereign's will and benefiting the sovereign.
No comments:
Post a Comment