Natural Law and Natural Rights III By James A. Donald

Natural Law and Natural Rights

By James A. Donald
jamesd@echeque.com

Hobbes Criticism of natural law

The existence and force of natural law has been continually disputed by those who claim that the state should exercise limitless power over individuals.
Early in the seventeenth century Thomas Hobbes argued that the nature of man was not such that one could deduce natural law from it, or rather he argued that the natural law so deduced placed no important limits on the power of the ruler to do as he pleased, to remake society as he wished, that social order was purely a creation of state power.
Hobbes claimed that in a state of nature, it is a war of all against all, and life is “poor, solitary, nasty, brutish, and short”. This of course is a direct contradiction of the usual natural law argument that man is a social animal, adapted by nature to live mostly peaceably with his fellow men, and do business with them quietly.
Therefore, Hobbes argued, the state is entitled to unlimited power, and right is whatever the state, through its laws, says is right, and wrong whatever the state says is wrong. An “unjust law” is a contradiction in terms because the will of the state is itself the standard of justice, thus the ruler can do no wrong. The ruler is answerable to God, but everyone else is answerable only to the ruler.
Hobbes saw rights as a creation of state power: Therefore, in order that we might have more and better rights, state power should be as absolute and total as possible. The state should pervade and dominate every relationship in order to provide everyone with justice and rights, and suppress any form of association that it does not create and control, and the state should silence any criticism of its absolute power (so that we might be more free).

“Another infirmity of a Commonwealth is the immoderate greatness of a town, [...] also the great number of corporations, which are as it were many lesser Commonwealths in the bowels of a greater, like worms in the entrails of a natural man. To which may be added, liberty of disputing against absolute power by pretenders to political prudence; which though bred for the most part in the lees of the people, yet animated by false doctrines are perpetually meddling with the fundamental laws, to the molestation of the Commonwealth, like the little worms which physicians call ascarides.”

There are some people who read Hobbes, like his reasoning, like some of his conclusions, and discard the conclusions that the twentieth century has shown to be catastrophic. This is inconsistent. If you agree with his assumption that man is not a social animal, then his conclusion that the institutions of a totalitarian state are necessary and desirable, are necessary for people to be free, follows logically.
Hobbes is often called the first atheistic political philosopher. This statement is misleading. There were plenty of political philosophers before Hobbes who had little use for religion, or were hostile towards Christianity, and made little pretense of Christianity. Hobbes was, or pretended to be, a conventional Christian. What made Hobbes different is that he saw religion as a threat to the moral omnipotence of the state. Hobbes argued that subjects of Leviathan should submit not merely their actions but “their Wills, every one to his Will, and their Judgments to his Judgment.” Hobbes's Leviathan was to define the meaning of all words, including, indeed especially, the meaning of the words good and evil. Thus Hobbes's state was to be God, and man could have no other gods before the god of the state. What made Hobbes different is not that he was cynical about Christianity (there were many political philosophers before him more cynical than he) but that he was the first in the sophist tradition to propose what Plato had proposed: to divert religious impulses towards the state, as was eventually done on a large scale during the twentieth century, most vigorously in Nazi Germany and in the Communist countries.
Hobbes claim that in the state of nature life is “solitary, poor, nasty, brutish, and short” can be observed to be false. It is true that during the dark ages, spontaneous order often failed, with bloody consequences, but even a few examples of spontaneous order suffice to demonstrate the existence and force of natural law, just as any number of non tigers cannot disprove the existence of tigers, but two tigers are sufficient to prove existence. In fact a state of nature is very rarely the war of all against all, as Locke pointed out. Spontaneous order held much more often than it failed. Natural law was the norm, both morally and in practice. Of course was not effective all the time, but it was effective often enough that its existence is an indisputable fact. Hobbes history was simply wrong. He took the dramatic events of history, and ignored the commonplace, and treated the dramatic events as the norm. In addition, those dramatic and bloody breakdowns of order that did happen during the dark ages were often the result of armies of refugees fleeing the lawless and criminal activities of states.
Hobbes also argued that even if men know what is just, they will not always do what is just, and that this will often lead to war. This is of course true, but that argument does not lead to the conclusion that men should submit to absolute power. Quite the contrary. As Locke argued, and as the twentieth century dramatically showed, inequality of power does not lead to less use of unjust force, but to greater use of unjust force. Human wickedness is an argument for liberty, not an argument for absolute forms of government.
This argument is no longer used by the modern successors of Hobbes. To conclude for absolutism, it is necessary to argue, as Hobbes argued, that men *cannot* know what is just use of force, and must be provided with an arbitrary definition of justice by some authority possessing a single will, as Hobbes argued. To argue for absolutism from human evil, as both Hobbes and De Maistre also argued, is foolish, and these days nobody makes that argument, regardless of their political persuasion.
If the war of all against all occurs because men cannot know what use of force is just, then indeed law is a creation of the state, as Hobbes argued, and the state is above the law, as Hobbes argued, and social cohesion derives from the will of the ruler, as Hobbes implied. But if violent conflict occurs because of simple uncomplicated evil acts by evil men, then his arguments are invalid, and the arguments of Bastiat and Locke apply — law is collective self defense, thus the state must govern under law, it is not the source of law. The state cannot justly use force in ways that would be illegitimate for an individual in a state of nature. Social cohesion derives from arrangements to ensure that people apply retributive force justly and that the use of such force can be seen to be just, what nineteenth century people called “due process and the rule of law&”. Social cohesion does not derive from a single central will, contrary to Hobbes arguments and assumptions.