To achieve the rule of law is difficult. To have the rule of man requires only submission to power. Anarchy is also easy, if less sustainable. By contrast, the rule of law requires us to be lawful. It is not sufficient for the law to be imposed on us from above or without, nor can we simply fight the powerful. We must have the law within us if we are to achieve and preserve self-governance.
The rule of law is impossible where the people are lawless. Someone must rule to preserve peace and order. If we will not rule ourselves, someone will rule over us. Otherwise, life is solitary, poor, nasty, brutish, and short.
Alarmingly, we see evidence of lawlessness all around us. Looters and rioters in Seattle and Chicago are obvious examples. Less dramatically, but no less controversially, executive orders to wear masks in public, which are intended to arrest the spread of the novel coronavirus, have revealed lawless attitudes in both citizens, who refuse to do what is reasonable to reduce risks to their neighbors, and executive officials, who act without specific legislative authority.
Disobedience to law is now widespread. Indeed, it is portrayed as a virtue in many public settings. But eruptions of lawlessness often produce dangerous backlashes, as people begin to fear for their lives and estates. Many strongman rulers have ascended to power on the currents of law-and-order sentiments during unsettled times.
Tyranny has no attraction when compared with the rule of law. But when everyone does what is right in his own eyes, tyranny often appears more attractive than anarchy. And it seems more morally justified. Life and peace are worth preserving. If a strong sovereign is necessary to preserve them, people may conclude that a strong sovereign is called for.
This is a natural law argument for lawless people. It’s not new, of course. The English philosopher Thomas Hobbes expressed it powerfully during the chaotic and frequently lawless seventeenth century. A recent book by Kody Cooper, Thomas Hobbes and the Natural Law, offers a sympathetic interpretation of Hobbes’s works. He makes what is perhaps the strongest possible case that Hobbes was a natural lawyer, like Cicero and Aquinas, whose theory of legal and political power is ultimately grounded in the common good. Though the argument for relocating Hobbes among natural law theorists fails (not for lack of capable effort by Cooper), the book helps clarify why many people find the case for a leviathan persuasive.
Thomas Hobbes vs. Thomas Aquinas
The common good plays a rather minimal role in Hobbesian theory, and Cooper characterizes Hobbes’s conception of the good as “thin.” In fact, it boils down to one good. Bodily life is the basic reason for action. The laws requisite to its preservation are legislated by God’s rational word, and given specific form by the sovereign ruler. Cooper locates Hobbes within the tradition of natural law liberalism, even though “for Hobbes the duty to protect civil liberty is subordinate to the good of security because there are no civil liberties for dead citizens.”
Cooper compares Hobbes’s teachings with those of Aquinas, emphasizing similarities while candidly assessing the differences. On the necessity of sovereign commands to govern the lawless, Cooper perceives more similarity than difference. Both theorists, he writes, taught that “infants and undisciplined adults are ungoverned by right reason and ruled by their passions,” and that the “human aptitude for society must be acquired through discipline and instruction.” The means of that instruction are law “backed up by a coercive power.”
Okay. But how much of the work is done by law and how much by coercive power? A person in the condition of lawfulness does not need coercion to obey the law; he obeys the law because it is reasonable to do so. A lawless person requires coercion precisely because he does not take the law as his decisive reason for action. In both cases, law and coercion are distinct. In the case of the lawful person, law does the work and coercion is unnecessary. In the case of the lawless person, external coercion does the work because the person has no law in him.
The character of the lawful person is radically different from that of the lawless person. Having taken the law into his choices and actions, and thus into his character, the lawful person acts on his internal motivation to obey the rational specifications that those in legitimate authority have chosen to govern the political community. Those specifications become the lawful person’s own motivations and reasons. Aquinas taught that law perfects our nature, which is the capacity to reason and to act for the good ends that we can achieve only by coordinating our actions according to law.
Cooper acknowledges that Hobbes and Aquinas differ on which human condition is natural. For Aquinas, the natural is the reasonable, and a person who adheres to the principles of natural law is one who behaves reasonably. Of course, some people, especially the youth and the vicious, act unreasonably. They need force and fear to prevent them from harming others and undermining lawfulness in the community. But coercion is a concession to the failure of law in those cases; it is not the stuff and marrow of law itself.
By contrast, by “natural” Hobbes means “the infantile, in which the activity of right reason must be lacking.” The infantile include not only the young but also uneducated or poorly educated adults. These people are everywhere, and it is not easy to detect them. So, in the state of nature, we all should be afraid of everyone else. Coercion, force, and fear are not concessions to law’s ineffectiveness to guide vicious and immature people, but rather constitute the core ingredients of law.
The Nature of Law
Hobbes and Aquinas differed not only concerning human nature but also concerning the nature of law. Hobbes and other moderns identify law with command. Natural law is divine command, while human law is the command of a human sovereign.
Cooper attributes the same view to Aquinas. But Aquinas did not identify law with command. He knew too much about law to make that mistake. For example, Aquinas considered customary law to be real law, promulgated by the actions of the people as legislation is promulgated by the words of the legislator.
The modern reduction of law to command does not necessarily make Hobbes a voluntarist. Cooper takes pains to explain how, for Hobbes, the normative force of God’s commands is supplied by their tendency to produce peace and protect bodily life. But the theoretical reduction of law to command eliminates from consideration most laws—powers, immunities, liberties, voluntary agreements, and all the other artifacts of private and legal orders that enable people to cooperate together for the common good, and to govern themselves. A view of law as simply command must necessarily be blind to most of what law is, and to most of the good that law can accomplish. It cannot allow for self-governance and the rule of law.
In Hobbesian jurisprudence, all private law, such as property, and customary institutions, such as the jury, are illicit. Only the sovereign can specify obligations, promulgate rules, and decide cases and controversies, if bodily life is to be preserved from destruction by the unwise and vicious. “Hobbes marks off the following as a most poisonous doctrine: That every man is judge of good and evil actions.” Cooper argues that a state of affairs in which people exercise private judgment is “just the condition in which civil law fails to obtain.”
Self-governance is dangerous. Ordinary people must not be permitted to exercise their lawfulness muscles, because people cannot be trusted to be lawful. So, private and customary law must not be recognized as law. (Cooper argues that Hobbes does maintain a role for a weak version of equity in official judgment.)
Cooper is aware that this myopia is a defect of positivist legal theories, which ground legal validity in the source of a law without regard to its content. He faithfully summarizes H. L. A. Hart’s devastating criticisms of nineteenth- and twentieth-century positivists, who excluded from their theories all private powers, customary law, lawful adjudication, and much other actual law. But Cooper is less interested in examining the defects of positivist legal theories than in demonstrating that Hobbes is not a positivist, but a natural lawyer. According to Hobbes, law obligates not merely because it is commanded by the sovereign but also because and insofar as it supplies a sufficient reason for action.
In the end, Cooper argues that Hobbes is a natural lawyer because the validity and obligatoriness of the sovereign’s commands depend on their moral validity. One has a pre-positive obligation to live peacefully, and the right to preserve one’s own life. These laws are superior even to the laws of the sovereign. But only those laws are superior.
Such a thin conception of natural law cannot sustain all the activities of a fully flourishing community. But it appeals to those who live in fear of losing their basic security. Many people are possessed by that fear today, as many were in Hobbes’s time. Cooper’s book reminds us that their concerns are moral, and are entitled to our attention. He also shows what we have to lose if their coercive view of law prevails.