‘They confound law and covenant who conceive the laws to be nothing else but certain […] forms of living determined by the customs of men’
De Cive (Of the Citizen)
Thoughts here are rather provisional reflections while reading De Cive, but are very much what I have to think over time are the problems in Hobbes’ political theory.
Hobbes here refers to Aristotle, quoting in Greek and an English translation. He does not give references to the Aristotle quotation, and I cannot find the source except that I have found similar passages in Politics VI 1. The broad point is that what is legal or sovereign in Aristotle is what citizens are use to agreeing on.
Hobbes point is that his antique and republican predecessors have confused contract with law and also custom with law. When Hobbes refers to antique and republican predecessors he is referring to Plato, Aristotle, Cicero and Seneca. All see government coming from consent of the citizens through law and custom. The idea of Plato as a Republican thinker of government based on consent is somewhat against current stereotypes about Plato, but those stereotypes need reassessing.
The most direct point Hobbes makes here is that law is more than covenant. Covenant is the term Hobbes used for the contract which establishes a sovereign body to represent and rule a people. It seems to me that there is some trouble for Hobbes in wanting to make covenant the basis of sovereignty and then make covenant less than the sovereignty of law. Leaving that aside, Hobbes’ point is that we must distinguish between particular contracts as agreements between citizens and the agreement to which maybe no living individuals have explicitly consented, that is the agreement to obey the laws passed by the sovereign body.
In this way, Hobbes makes a clear distinction between anarchy, which he refers ti as the state of nature, and civil society. When i say anarchy, I do not mean in the negative sense of chaos, I mean in the positive sense of a social order based on purely voluntary co-operation.
Both senses appear in Hobbes. When he talks about a state of nature, he refers to constant war. As far as I am aware, there is considerable evidence that the earliest human societies of small bands were frequently at war with each other and lost a higher proportion of the population to war than modern industrial societies, even allowing for the 20th Century European wars. However, Hobbes also seems to allow for a city which has yet to establish a covenant for instituting sovereignty. In this case, he must believe in a civil society of a kind before sovereignty. There may be a problem for Hobbes here.
Hobbes makes a strong case against anarchism, or a purely contractual voluntary, view of relations between humans. He also refers more obliquely to the belief that laws are based on custom, which looks like criticism of some kinds of conservative thought. In the context of his time though, it is maybe more another way of criticising antique republicans and their early modern followers. For the ancient thinkers Hobbes criticises , the best laws and constitutions are those which spring from the customs of a city and are not imposed by the law making body. I think Hobbes detects anarchist undertones, the idea that laws can exist and be applied without a sovereign body to make and enforce them. What Hobbes criticised does not disappear in the early modern period. A century later, Montesqueiu and Rosseau conceive of a republic in its ideal form as an almost stateless state, in which laws are customs. These aspects of Montesquieu and Rousseau were of great interest to radical republicans like Robespierre and Saint-Just in the French Revolution. In power, they took this to mean they should enforce the kind of virtue which can be found in the customs of ancient republics.
When thinking of Hobbes, we should not just think of the idea of the unlimited sovereign power, but also of a distinction between law and custom or contract, which leaves custom and contract distinct from political questions of sovereignty, and therefore free of state intervention and domination.