Rawls J. Lectures on the History of Political Philosophy

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ereign’s actions. The Sovereign is their agent, and there is not, Hobbes con-

tends, a contract between members of society and the Sovereign. I do not

believe that this in itself is a very important point, because in the case of

the act of submission, where sovereignty is by acquisition or conquest,

there is a pact between those who submit and the Sovereign. There is not

the same kind of agreement that occurs in the case of authorization, but

there is some agreement. Still, for Hobbes, in the case of institution of the

Sovereign by authorization, the covenant is not with the Sovereign but be-

tween everyone in the society with each other.

So far this account is rather informal and concerns only what the no-

tion of authorization is. It is a different account than Hobbes gives in his

earlier De Cive (1647), where the Sovereign becomes the Sovereign by every-

one’s renouncing their right to resist the Sovereign. So, it is not that the

Sovereign isn’t authorized in De Cive; it’s just that everyone renounces cer-

tain rights that would enable them in some conditions to resist the Sover-

eign. In the Leviathan everyone confers the use of their right on the Sover-

eign by means of a contract with each other, so the Sovereign becomes

their agent; and Hobbes believes that in this case one has a different and

stronger sense of social community than one has in De Cive.

Now, next, it is a useful exercise to try to work out what the social con-

tract is supposed to say. If we think of A and B as being any two members

of society, and if try to write out a hypothetical contract, it might be some-

thing like the following:

The ﬁrst clause would be: “I, A, do hereby covenant with you, B, to au-

thorize F (who is the Sovereign, or some sovereign body) as my sole politi-

cal representative, and therefore I covenant to own henceforth all the Sover-

eign’s actions so far as this is compatible with my inalienable right of self-

preservation and my natural and true liberties” (see Leviathan, pp. 111–112;

see also p. 66). In Chapter 21 Hobbes mentions certain liberties that we can-

not alienate; so, what I have done here is to say that I covenant to own and

support all the actions of the Sovereign except in these special cases.

The second clause would be: “I covenant to maintain this authorization

of the Sovereign as my sole political representative continually and in per-

petuity and to do nothing incompatible with this authorization.”

The third: “I covenant to recognize all the necessary powers of the

Sovereign enumerated below, and therefore that the powers listed are justi-

ﬁable and recognized as such.” And here we can go through the Leviathan

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and make a list of all the powers that Hobbes says the Sovereign must have.

As you can see, the list is quite extensive.

The fourth clause would be: “I covenant not to release you, B, from

your similar authorization of F made in your covenant to me, nor shall I

ask you, B, to release me.” In other words, we are tying ourselves into this.

We are not going to ask the other to release us and we are also undertaking

not to release them. There may be some logical puzzles about this, but I’ll

skip over those at the moment.

As the next to last clause: “I covenant to forgo my right of exercising

my discretion in matters of the common good of the commonwealth and

to forgo the right to private judgment as to whether the enactments of the

Sovereign are good or bad, and to recognize that all these enactments are

just and good so far as this is compatible with my inalienable right of self-

preservation and the like.”

And then to end it: “All this I do for the ﬁnal end of setting up the Sover-

eign, for the preserving of my life, the objects of my affections, and the

means of commodious living.” The introduction of these constraints on

myself is required, in Hobbes’s view, for the existence of an effective Sover-

eign, and so one regards all of these conditions as necessary.

Note that the next to last clause, about forgoing the exercise of my dis-

cretion in deciding whether the laws of the Sovereign are good, is a very

strong clause. That is, normally, what one would do would be to agree to

comply with the Sovereign’s laws. One would say that would be a reason-

ably normal thing to do in this sort of covenant. But, to add to that that I

will not judge, nor even think about, whether or not the Sovereign’s laws are

good—that is a much stronger condition. Let’s say we can presume that I

have an obligation to obey the law even though I do not necessarily think it

is a very good law, or perhaps I do not think it is even a just law; we can rec-

ognize that bad consequences might result if we each regard ourselves as

justiﬁed to disobey laws that we do not think would be just or good. How-

ever, to covenant that I will not even consider judging alawat all unless it is

incompatible with my retaining certain inalienable rights such as the right

of self-preservation, is a very strong condition. There are, however, state-

ments in Chapters 29 and 30 where Hobbes implies just this.

What Hobbes requires then is quite a lot, and while it would be wrong

to characterize Hobbes’s view as totalitarian (because that is a term that

can only make sense in a nineteenth-century or twentieth-century govern-

ment), it is, nevertheless, an absolute regime, in the sense that he is requir-

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ing very strong conditions and is saying that the Sovereign must have very

strong powers if it is to be effective. What one wants to do in examining

Hobbes is to try to work out how plausible his argument is for including

under the Sovereign all these powers, and think what assumptions he is

making that make the requirement of all these powers plausible to him.

Now, I want to say a few things about the relation between the Sover-

eign and the notions of just and good laws. Often, Hobbes says that the Sov-

ereign’s laws are necessarily just. But, it is possible for the Sovereign to enact

laws that are not good—laws that are bad. So the problem arises as to how

we are to understand the notion of justice so it that can happen that the

Sovereign’s laws are necessarily just, but may not be good. And how are

we to understand the notion of good which also allows for that? Some

people have thought that Hobbes is saying that the Sovereign has all this

power and in effect that power makes right—that the reason the Sovereign’s

laws are always just is that the Sovereign has all the power. I believe that is

a rather bad distortion of what Hobbes is saying. His thinking is that, if

you take his idea of how the state is put together, then everyone has, by

covenant, agreed with each other to authorize the Sovereign; and by

Hobbes’s third law of nature we know that covenant is the foundation of

justice. Anything characterized in Hobbes to be just is normally related

somehow to the notion of covenant (Leviathan, pp. 71–75).

I think then, that it is Hobbes’s view that the Sovereign’s laws are just

because the Sovereign is the person upon whom everyone has granted the

use of their rights for certain purposes, and among those purposes are

those of making laws. He says that the law is made by the sovereign power,

and that all that is done by such power is warranted and owned by every

one of the people; and that that which every man will have so, no man can

say is unjust. Therefore, the Sovereign being the person whom everyone

has covenanted as that person who is to make laws, it follows that the Sov-

ereign’s laws are just. He also comments: “In the Laws of a Common-

wealth, as in the Laws of Gaming: whatsoever the Gamesters all agree on,

is Injustice to none of them” (Leviathan, p. 182). So, if we have all agreed to

make the Sovereign the one who has the use of our rights, then it follows

that the Sovereign’s laws are just.

Of course Hobbes has another idea about the notion of good alto-

gether. He says that in a state of nature each of us calls those things good

that favor our interests. One might say roughly that in a state of nature,

when I say that something is good, I mean that it is favorable to my rational

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concerns as I now see them. Hobbes believes that people don’t have any

agreed notion about what is good. The same person at different times will

say that different things are good. Different people at the same time also say

that different things are good. It is not the case that men are like beasts, say,

where all in pursuing their private interests also realize the common good

(Leviathan, pp. 86–87). We are not that fortunate, and there is no common

good that we recognize by reason. We have no common insight into a no-

tion of that sort. What we require is some agency, some impartial arbitra-

tor or impartial judge, to decide what is in the common good. When

Hobbes says that some laws are bad and not good, I think he has a very sim-

ple notion of good that one might characterize in the following way: What

is to the common good are those enactments and those laws that will se-

cure the background conditions that enable everyone to ﬁnd it reasonable

or rational to adhere to the laws of nature. Good laws would then be spe-

ciﬁc enactments that on the whole further the interests of the vast majority

of the members of society, on the presumption that a civil state exists.

If that is right, if we give a characterization of the notions of justice

and goodness in this way, then it is easy, I think, to see how Hobbes could

say that the laws that the Sovereign enacts are always just even though the

Sovereign may enact bad laws, and sovereigns have often done so. The Sov-

ereign is the rightful arbitrator or judge of what is just and unjust since sub-

jects have agreed to authorize him to exercise those powers, and subjects

have also given up their right to question the Sovereign’s discretion; but still

the Sovereign may in fact do injury and enact bad and not good laws, as de-

cided by the subjects’ rational interests.

Finally, Hobbes contends bad laws are never as bad as a State of War.

Closing Remarks on Hobbes and Constitutional Democr acy (1978)

Hobbes’s political conception is likely to strike us as extremely unsatisfac-

tory: we are compelled to choose between absolutism and anarchy: an unlim-

ited Sovereign or the state of nature. For Hobbes insists:

(a) The only way to escape the State of Nature is to set up a Sovereign

that is as absolute as can be (consistent with our inalienable rights

to self-preservation, etc.); and,

(b) The State of Nature is the worst of all calamities that can befall us.

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It is essential to see that these two theses are not required by Hobbes’s for-

mal theory but from his substantive views about human psychology and how

he thinks political institutions will actually work. And, of course, he may be

wrong in thinking that his own theory hangs together: it may be internally

inconsistent.

After all, we know, I think, that Hobbes’s substantive theory can’t be,

in general, correct; since constitutional democratic institutions that violate

his conditions for the Sovereign have actually existed and have not been

noticeably less stable and orderly regimes than the kind of absolutism that

Hobbes favored. I shall conclude with some observations on this theme

by way of making the transition to Locke and his form of Social Contract

theory.

1. First, let’s note some of the distinctive features of a constitutional

democratic regime (with or without private property in the means of pro-

duction) illustrated so far as possible by reference to our own regime.

(a) The constitution is understood as written and supreme law that regu-

lates the scheme of government as a whole and deﬁnes the powers of its

various agencies: executive, legislative, etc. This is a different notion than

that of the constitution as simply the scheme of laws and institutions which

form the system of government. Perhaps any regime has a constitution in

the latter sense; but the idea of fundamental written law is distinctive, at

least when combined with other features: e.g. with judicial review (a consti-

tutional agency with certain powers to interpret the constitution).

(b) One purpose of a written constitution (interpreted say by judicial re-

view) is to secure certain basic rights from being overridden by the highest leg-

islative agency. Enactments of the legislature that violate certain rights and

liberties can be held void or unconstitutional, etc., e.g. by a supreme court,

or other agency.

(as we ﬁnd it in our constitutional system). And ﬁnally

(d) The idea of a constitutional convention and of various constitutional

procedures for amending the constitution. A constitutional convention is re-

garded as having regulative power to adopt or to put to adoption by the peo-

ple (by ratiﬁcation, etc.), or to amend etc., the constitution; and it is superior

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1. Cf. Gordon Wood, The Creation of the American Republic (Chapel Hill: University of

North Carolina Press, 1969), pp. 260f.

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to the normal process of legislation by the highest legislature. The constitu-

tional convention and the amending powers express in working institu-

tions the so-called sovereignty of the people. This sovereignty need not be

expressed by resistance and revolution but has an available institutional ex-

pression.

2. Now in a constitutional regime with these four features there is no ab-

solute Sovereign in Hobbes’s sense. Presumably Hobbes would not deny

this, since he regards the idea of mixed government with a balance of powers

as violating his principle of good government (cf. Leviathan II:29:S:259 [1st

ed., 170]; and II:18:S:150 [1st ed., 92]): the rights and powers of the Sover-

eign should lie in the same hands and be inseparable.

(a) Sometimes, however, Hobbes uses a familiar regress argument for the

Sovereign: such an unlimited power must exist, for if the supposed Sover-

eign is limited, it must be limited by some superior agency and then that

agency is unlimited. This argument is suggested at two places: ﬁrst (p. 107)

where Hobbes says, “And whosoever thinking Sovereign Power too great,

will seek to make it less; must subject himself, to the Power, that can limit

it; that is to say, to a greater.” And second, in arguing that the Sovereign is

not subject to laws, Hobbes says that it is an error to think the Sovereign is

subject to law (p. 169). “Which error, because it setteth the Laws above the

Sovereign, setteth also a Judge above him, and a Power to punish him;

which is to make a new Sovereign.”

It is not clear that Hobbes intends a regress argument here, but he ap-

parently fails to make two distinctions that are crucial:

(i) Between a supreme (or ﬁnal) e.g. legislative power and an unlimited

one. Thus Congress may be the supreme legislative authority for normal law

making, but it is not unlimited: it is subject to veto, to judicial review, to con-

stitutional limitations, etc.

(ii) Between the idea of a personal Sovereign or agency whom all obey

and who in turn obeys no one (Bentham’s deﬁnition of the Sovereign) and

the idea of a legal system deﬁned by a scheme of rules that specify a constitu-

tional regime. This scheme of rules will contain certain basic or fundamental

rules which serve to deﬁne which rules are valid rules; and these basic rules

are accepted and followed, deliberately and publicly, by the various consti-

tutional bodies. Thus we have to distinguish between the idea of a personal

Sovereign (or sovereign body) identiﬁed by habits of obedience and who in

turn obeys no one, and the idea of a constitutional system revealed by certain

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basic rules which everyone (or enough people) accept and use to direct their

conduct.

(b) Now the point of making these distinctions is that we can see (by

applying these distinctions) that in a constitutional democratic regime (of

the U.S. type) there is no personal Sovereign (in Hobbes’s or Bentham’s

sense); nor is there one constitutional body or agency that is supreme and

unlimited in all matters. There are different powers and agencies which are

assigned different tasks and authorities, and are put in a position where they

can check each other in certain ways (via balance of powers, etc.).

3. Now a constitutional system of this kind, if it is to work, requires a

kind of institutional cooperation, and the conception of this cooperation

must be understood and accepted by those who take part in these institu-

tions and work them. This ties in with what we said earlier (in Lecture III)

about Hobbes’s political conception having no room for the notion of

moral obligation; this we interpret to mean that:

(i) Hobbes has no room for a notion of reasonable self-restraint in the

sense of a willingness to forgo permanent and long-term beneﬁts as judged

by one’s own rational self-interest (in Hobbes’s sense); and that

(ii) Hobbes has no place for a sense of fairness, as illustrated by his

having no account of fair background conditions of binding covenants.

Hobbes comes close to saying: To each according to their (rational) threat

advantage.

These two notions—that of reasonable self-restraint and that of fair-

ness—are essential to the notion of social cooperation, where cooperation is

understood as distinct from mere social coordination and organized social

activity. The idea of cooperation involves an idea of mutuality and reciprocity

(another way to refer to fairness), and a willingness to do one’s part, pro-

vided others (or enough others) do theirs (another way to refer to reason-

able self-restraint).

4. In view of these remarks, we can interpret Hobbes’s doctrine that

people are not ﬁt for society this way: it means that people are not capable

of social cooperation in the sense deﬁned above. While Hobbes argues that it

is rational for each to be reasonable, that is, to comply with the Laws of Na-

ture (as articles of peace) when others do likewise, Hobbes supposes that

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2. For these distinctions, see H. L. A. Hart, The Concept of Law (Oxford: Clarendon

Press, 1965), pp. 64–76, 97–114.

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people have no attachment, no desire etc., to act from principles of reason-

able self-restraint or mutuality (fairness) for their own sake. These reason-

able desires (as you might call them) have no part in his account of human

psychology, at least insofar as political questions are concerned. Hobbes

need not, perhaps, deny that these desires exist; he may say that they are

too weak and unreliable to matter. In any case, Hobbes’s account of practical

reason as rationality has no place for them.

If we reject Hobbes’s doctrine, one thing we can do is to see how the

Social Contract view might be recast so as to provide not merely a perspec-

tive from which political institutions can be seen to be collectively rational,

but a framework within which the content of the notions essential to social

cooperation—reasonable self-restraint and fairness—can be deﬁned or out-

lined. And this brings us to Locke.

Hobbes Lecture IV: Appendix A

Handout: The Role and Powers of the Sovereign

A. The Role of the Sovereign

1. The Role of the Sovereign is to stabilize civic life as a state of peace

and concord; and while the Sovereign’s laws may not be always good, and

may often be bad, the state of civic peace is always better than the State of

Nature, which readily falls into a mutually destructive State of War.

2. There are some analogies between Hobbes’s account of why the

making of covenants cannot remove the destructive instability of the State

of Nature and the now well-known problem of the Prisoner’s Dilemma.

This is an example to illustrate the problems that can arise in a two-person,

non-cooperative, non-zero-sum, perfect-information, non-recurrent game

(see Figure 4).

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Figure 4. Prisoner’s Dilemma 3.

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(a) Note that the action: to confess dominates the action: not to con-

fess. This means that the ﬁrst prisoner does better by confessing, whatever

the second prisoner does. And similarly, the second prisoner does better by

confessing, whatever the ﬁrst prisoner does.

(b) The pair of actions of both prisoners confessing is a stable pair in

the sense that when either knows the action (to confess), that prisoner does

better to confess. Thus the SE cell is the only stable cell.

and therefore confessing leads to a situation in which they are both worse

off. They would both do better if they could agree not to confess and some-

how have that agreement enforced.

(d) That such an agreement needs to be enforced is shown by the fact

that both prisoners are at least tempted to break it; and the temptation is

greater or less depending, of course, on the stakes involved.

3. Hobbes’s account of why covenants in the State of Nature are in

general invalid (14:68) resembles a Prisoner’s Dilemma situation. For if the

party to perform ﬁrst honors the agreement, the other party, knowing

this, has an incentive not to honor the agreement. The temptation not to

honor it may be very great; as shown by the problem of arms-limitation

agreements. The country that succeeds in cheating may gain empire; and

the other knowing this is afraid, on rational grounds, to limit its arma-

ments.

4. Thus Hobbes’s view is that the general condition of humankind is

such that there are but two stable states: the State of Nature (which is a

State of War) and the State of the Leviathan: a state of civic peace main-

tained by an effective Sovereign equipped with all the powers which

Hobbes says the Sovereign must have. The reasons why the State of Nature

(which is a State of War) and the State of the Leviathan are the only two

stable states are explained by Hobbes in ways analogous to the features of

Prisoner’s Dilemma situations. Be careful, however, to recognize that the

State of Nature is far more complicated as a fuller discussion would show.

For example, Hobbes thinks of the State of Nature as like a recurrent (re-

peated) Prisoner’s Dilemma game, which introduces other considerations.

On this, see his reply to the fool, 15:72f.

B. The Problem to be Solved:

1. On Hobbes’s view what we must do, if a State of Nature exists, is to

lift ourselves out of this State of Nature and into a State of the Leviathan.

And we must do this despite the fact that in the State of Nature covenants

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between individuals puts parties in a dilemma analogous to the Prisoner’s

Dilemma situation.

2. This lifting process, if it is to succeed, must solve three problems:

(a) It must deﬁne a mutually beneﬁcial and peaceful social state

which is recognizably better for each than the State of Nature. This is done

by the Laws of Nature and the idea of an effective Sovereign; if this Sover-

eign is at all rational, and recognizes its own good, it will enact good, or suf-

ﬁciently good laws.

(b) As already indicated, once an effective Sovereign exists, it stabi-

lizes the state of civic peace, the State of the Leviathan. This it does by be-

ing an effective Sovereign: for when such a Sovereign exists, citizens have a

sufﬁcient reason for relying on others to comply with the Laws of Nature

and the Sovereign’s enactments. The general nature of human motives is

not changed; rather, given these motives, citizens now have good reasons

for adhering to their covenants. The public knowledge that an effective Sov-

ereign exists solves the problem of instability. The Sovereign makes it possi-

ble for us to stay in the Northwest box and not to be trapped in the South-

east box.

Hobbes envisages this happening in two ways. One is that an effective Sov-

ereign may come to exist by conquest, or by acquisition; or by some similar

process. The other is that an effective Sovereign may be set up by the Social

Contract, or by institution.

3. But how is it possible for the lifting process of Sovereign by institu-

tion, by Social Contract, to succeed? Or is it purely notional in Hobbes’s

view, and therefore intended only as a point of view from which citizens

can understand why they each have a sufﬁcient reason for wanting an effec-

tive Sovereign to continue to exist, and therefore to comply with the laws

of such a Sovereign when one does exist?

4. Possibly Hobbes thinks the lifting process via Social Contract might

work as follows:

(a) Given that everyone in a State of Nature recognizes that general

compliance with the Laws of Nature is collectively rational, and hence ra-

tional for each, and that an effective Sovereign is necessary for a (stable)

State of the Leviathan, each person covenants with everyone else (except

the Sovereign) to authorize the Sovereign (as designated) and to own all the

Sovereign’s actions, on the condition that others also do this.

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