So are the laws of nature really laws or not? There are more confident opinions on this matter than there are convincing arguments.
I think JJ asked a more fruitful question: why would it matter? That is, does anything in Hobbes’s theory depend on the laws of nature having the specific status of laws or is it enough if they are just rules for saving your skin?
Most of the attention in the literature has focused on whether the laws of nature are obligatory. But JJ’s question is a tough one for those who think the answer is “yes.” Is it really more compelling or informative to say that the laws of nature are obligatory than it is to say that they are rules for saving your skin?
If what is at issue is our ability to construct something socially real, like a state, I would think that we would care a lot more about the second kind of motivation. It’s nice that people often do what they are obliged to do. But self-preservation is a more reliable motivation.
Here is a different reason why I think the laws of nature have to be laws: it’s hard to see how the rules about the existence of the right of nature, laying down rights, retransferring rights, valid covenants, and authority can come from anything other than a legal system.
Self-preservation may well depend on being able to lay down one’s right to all things. But it doesn’t follow that anyone has the power to do so. For example, my self-preservation may well depend on my having the right to spend $10 million to cure my disease. But it doesn’t follow that I have the power to transfer $10 million from Donald Trump’s bank account to my own.
In my heart of hearts, I think that Hobbes thought of himself as offering a theory of commonsense moral rules. They’re all rules that fit the definition of a law of nature, meaning they’re all rules that contribute to self-preservation if they are followed. He was weak on the origins of these rules: there are problems with giving them a divine origin and there is no theory of their origins in human conventions. Why the latter is missing is anyone’s guess: it may be because he didn’t believe it or because he wasn’t willing to stick his neck out. But there’s no compelling direct textual evidence one way or the other.
One other advantage of looking at justice as the central topic of the book is that one need not settle these questions. There are certain assumptions about rights and obligations that are widely taken for granted in Hobbes’s society and the theory is about how they work to produce the kinds of proprietary rights characteristic of justice, understood as giving to each his own.
Or so think I.