Hobbes and the classical legal school

In the Leviathan Hobbes went to great lengths to justify his contradiction of Aristotle, who was still the only great authority at the time: humans he says are in fact not gregarious animals, are not destined to live in the city; they are primarily individuals. Look around you: humans are self-obsessed, aggressive and untrustworthy. If there is no kind of authority supervising them, they find "nothing but grief in the company of each other".

In keeping with Judeo-Christian tradition, Hobbes calls the "base" motives that lead to mischief "passions" and a world solely governed by individual passions would be in a constant state of war of "all against all". Passions are essentially chaotic, unpredictable and know no boundaries. Infinite desires and infinite freedom to satisfy them would lead to a life of constant struggle, or at least a world where violence might break out at any moment. Further, at the time and roughly until the twentieth century, crimes were essentially secular versions of sins as defined by the ten commandments, the implication being that criminal law was grounded in a version of absolute Truth or absolute Good as defined by a supreme being. But humans are all equally likely to commit sin (or crime): "passions" were seen as an important source of human behaviour. It was accepted at the time — and Beccaria is another example, if one hundred years later — that all humans are basically the same, and no particular explanation seemed necessary to account for deviance. One is as wicked as his actions are, and only because he committed them: everyone else is potentially capable of the same and barely kept under control. Even in a civilized society, says Hobbes, don't you lock your door when you leave home? Doesn't this mean that you "know" anyone might jump at the opportunity if you did not?

Note that Hobbes was in fact not saying that humans are intrinsically evil; rather, it is enough that they believe their lives and their property are in danger to suspect everyone and behave accordingly–and perhaps seize opportunities themselves: everyone else would do it, wouldn't they? Note how this is still part of today's popular knowledge about human nature. It is sufficient to fear that someone means to kill you for you to want to kill him first, and this is a much more tragic view of the state of nature than the traditional "rampant evil" one. Rousseau, however, was quick to point out that Hobbes had not really looked at the development of human culture, but rather simply considered how humans would behave today if they were left to their culturally acquired passions and fears, if modern law suddenly ceased to be enforced (as was the case with the civil war Hobbes lived through at the time). Rousseau says that the "thick dust of history" has already settled on culture and on the human intellect itself, and thus the search for human nature must first start with a good dose of housekeeping (and he is viewed by many today as the father of anthropology).

When he met Galileo in 1633, Hobbes was very impressed with the astronomer and decided to use the same scientific method in his study of "politicks." In De Cive, he explains that "reasoning is but reckoning" (computatio). Galileo was trying to prove at the time that the solar system was not governed by an external/teleological (godly) force, but by mechanistic/mathematical relations (to the great dismay of the Church). Hobbes claimed to have structured his demonstration on a similar mathematical model, but it was not yet clear at the time what form social explanation or understanding was to take (in fact, it was not clear that there even existed a "society," only a polity). Hobbes, as we mentioned, was not interested in finding why some people deviate, or for that matter why they do or refrain from doing anything; it is assumed that being rational, they simply choose their way. Rather, because he assumed everyone to be equally passionate, and passions to be unruly, his interest lied in why most of us behave properly, what sort of institutions were needed, how they were created, etc. In other words, contrary to Rousseau, he thought that civilisation does not change people in any way. It only changes the way they act by artificially putting a brake on their passions.

How does it do that? Well, this war of all against all had to stop at some point, since people are able, through reason (a well shared faculty, says Hobbes — since everyone is happy with his portion), to realize that their personal well being would be better served if a set of rules were imposed on everyone, and everyone submitted to it through a form of contract. Though it may seem strange to our modern worldview, it is important to underline that at the time, human freedom was widely defined as the power to disobey enslaving, animal passions, i.e. to act according to reason (Rousseau and Kant also use this definition). Thus, the new set of rules made each individual in fact more free than the absolute freedom he had previously enjoyed. Besides, while each would be limited in the ways he or she could acquire property (only reasonable ways are permitted, and passionate ones forbidden), once acquired, it now would not be stolen. In short, reason makes individuals more free in two ways: first, the rules help people extirpate themselves from the slavery of passions, second, they are now guaranteed the freedom to enjoy all things reasonably (legally) acquired without constant fear.

To provide this guarantee we may have to punish those who cannot free themselves from their passions: this new contract of reason, of course, cannot stand on its own; humans are no more trustworthy now than they were in the state of nature. Their given word must be accompanied by the knowledge and conviction that punishment will be meted out by a Sovereign power (who is a product of the contract, but not part thereof) on all contract violators. Therefore punishment in itself is not as important as the threat of punishment, which acts to counterbalance our passions.

Hobbes does not imagine that sometime in history a group of people sat down together and signed a contract, and that somehow this engagement was carried over to their descendants. What he does assume is that a majority of people today, or at any time (remember, people are always the same), if put in a situation of war of all against all, would indeed see the rational advantage of entering such an agreement, and that the rest would have to follow or leave (or be banished in some way). The set of rules governing society is then assumed to come from individuals as a product of reason, i.e. it is purely artificial. But it seems that this conclusion involves a logical leap: that is if society seems reasonable, it therefore must be a product of reason. Durkheim and Marx, for example, had a few objections.