Is there such a thing as justice in the state of nature, prior to the formation of the state? Hobbes has left us with a puzzle. He says,
He can consistently say any two of these things, but not all three.
So he messed up. He said all three of those things without noticing that they’re inconsistent, much less explaining what he meant. But is this merely an error of expression or is it a genuinely inconsistent position?
I think it’s the former and I tried to explain how the deeper doctrine is both consistent and sensible. The handout gives an outline for the class as well as supporting material.
I think that Hobbes wanted to say something about what has been regarded as an obvious definition of justice for thousands of years: justice consists in giving each his or her own.
What he wanted to say about this is that having something as one’s own presupposes a level of security that is only enjoyed under the state. There is no property prior to the state. Nor are there any rights of personal security. In the state of nature, everyone has “a right to every thing, including one another’s body” (Lev. ch. 14, par. 4). So your body isn’t your “own” either: everyone has just as much right to use it as you do.** Would the same conclusion follow if he had said something like, “many people have as much right to use it as you do”? So-called “proprietary” rights can only emerge within the state.
But if you understand justice as keeping your word and performing your contracts, then there can be such a thing as justice in the state of nature, prior to the establishment of the state.
In fact, the two senses of the word “justice” interlock in a pleasing way. The social contract produces a society of people who are all bound to follow the sovereign’s laws. The first of the sovereign’s laws, presumably, will establish personal security. We are all obliged to respect each other’s personal security because we are all obliged to obey the sovereign. The sovereign, in effect, removes competitors, leaving you as the only one who has a right to use your body. The sovereign has this power becauese of the social contract. In this way, the sense of justice associated with proprietary rights is created using the contractual sense of justice.
Hobbes was keen on showing that property depends on the state because he was opposed to the members of the Parliament and their backers who insisted that individual property rights limited the monarch’s power. In particular, a monarch, such as the unfortunate Charles I, would have to go through Parliament in order to raise money.
Hobbes thought that this weakened the state and precipitation the civil war. His analysis of justice, if true, would let the air out of the Parliamentarians’ position.
Hobbes often gives the impression of having thought that there is no such thing as right or wrong outside the state. I myself have never understood that. Why would a state bring such a thing as right and wrong into existence?
The answer to that question is usually something like this. “The state brings right and wrong into existence because it forces people to do what they should. Without that kind of force, no one would ever sacrifice his own interests for the sake of remaining honest and true to his word. So there is no such thing as morality prior to the state.”
There is something to that, but not all of it makes sense. Even if a group of people very much needed the state to force people to be good, they could still assess one another as just or unjust. The categories are there prior to the state. That’s how the state can be instituted by a social contract. Would that make any sense if having a government was a necessary condition of making a valid covenant?
More broadly, I think that in order to speak to us, Hobbes really had to have respected the line distinguishing legitimate force from mere power. That’s because we draw that distinction. If Hobbes had rejected the distinction, I think it’s unlikely that his conception of the state would have been even remotely close to our own.