We discussed Hobbes’s interlocking definitions of rights, liberty, law, and obligation. We distinguished the general definition of right, law, etc. from the specific definitions of the right of nature and the law of nature.
We also discussed covenants, the most important vehicle by which rights are surrendered and obligations created.
In particular, I pointed out passages that say there are no valid covenants in the state of nature and those that say that are no valid covenants in the state of nature. When we talk about justice, I will argue that he would have been better off saying that there are some, but not many, valid covenants in the state of nature.
Rights are liberties. Liberties are the absence of contrary obligations.
Liberties are limited by obligations. Given what liberties are, this is obvious.
Liberties are also presumably limited by laws. I say “presumably” because we don’t yet have an explanation of how laws limit liberty.
Obligations are created when people voluntarily “lay down” their rights. If Ty lays down her right to the water bottle to me, she is obliged not to interfere with my access to the water bottle.
Note that Ty’s laying down her right to me does not increase my rights to the bottle. I have just as many rights as I had before she laid hers down.
In addition, in laying her right down to me, she does not lose her right to interfere with Kevin’s access to the water bottle. If I’m struck dead, she can drink the water without doing anything wrong.
Contracts involve mutual surrenders of rights. Covenants are the most important case of contracts because they involve promises of future action. It is the covenant itself that is supposed to make the difference between the performance of the action and its non-performance. In mere contracts, by contrast, exchanges are simultaneous: those are easier to arrange and pull off.
The main way that a covenant is made invalid is reasonable fear that the other party won’t do his part. In the state of nature, where there is no state to punish those who back out of covenants, there is a lot of quite reasonable fear of cheating.
It’s no surprise that it’s hard to get a valid covenant in the state of nature. Hobbes says at least twice that there are never valid covenants in the state of mere nature. In both cases, he argues that to do one’s part first in a covenant is to put one’s life at risk. Since no one is required to do that, no one is required to perform their part. And, since people can be expected to avoid putting their at risk, everyone will always have darn good reason to fear that others won’t do their part in covenants.
“Fred promised to give me his sword tomorrow if I give him $1000 dollars today, but Fred thinks he will die if he gives me his sword, therefore, I have reason to fear that he won’t perform his part tomorrow.” That’s the kind of reasoning I have in mind.
At the same time, it’s hard to believe that it’s impossible to have a valid covenant in the state of nature. If, for instance, the other party has already performed her part, there can’t be any reasonable fear of non-performance. Performance has already happened and there’s no taking it back. Hobbes himself implicitly says so. See Leviathan 14.27 and 15.5.
Ah, but what about the bit about putting your life at risk by performing first? Yes, but not all covenants are like that. If I promise you my bucket for your barrel, it’s hard to see how death would result if you wound up with neither bucket nor barrel at the end. Hobbes’s own example is like this. How do the pirates put their lives at risk by releasing me for ransom? They have everything to gain and nothing to lose but the pleasure of killing me in an amusing way.
Furthermore, Hobbes himself is the one who argued that it is sensible to keep covenants even in the state of nature. That’s the conclusion to his famous reply to the Fool at the beginning of ch. 15. We’ll start there next time with two questions:
Max put his finger on a touchy question. The honest answer is that no one really knows.
On the one hand, the laws of nature sure look like, well, laws. And I don’t mean physical laws: you can break them. Rather, they require, oblige, command, define rights, tell us when covenants are valid or invalid, and so on. They do many of the things that human legal systems do.
But since these “laws” are supposed to exist even in the state of nature, how could they be laws? By hypothesis, people in the state of nature lack government. So there are no legal institutions to make laws.
Well, there is one possible lawgiver: God! But at the end of Ch. 15 Hobbes seems to say that he hasn’t proven that the laws of nature are God’s laws. (Some scholars think he even meant to deny that they are. I disagree. I think that he was just saying that the theory up to that point had not proven that they are God’s laws. Only scripture could do that and scripture goes beyond natural reason, which all human beings have, to the special revelations given only to Christians. But this is controversial and those scholars may be right. At the very least, Hobbes clearly thought he had achieved something independent of proving that the laws of nature are divine laws).
It doesn’t help that Hobbes starts off by rattling off definitions in the style of a geometrical proof. It looks a lot like the way Euclid’s Elements begins. Hobbes would have done us a big favor if he had explained what he was going to do first.
But he didn’t.
So what should we do? I think the best rule of thumb is to treat them as literally as possible, as laws, until there’s firm textual evidence of a better way of understanding what he meant.