Conflicting Theories of Law and the American Political System: A Commentary on Thomistic & Hobbesian Conceptions of Law & the American Republic (Part II)

Surely few thinkers are more opposed to the Thomistic legal system than Thomas Hobbes. Hobbes’ disagreement with Aquinas is more than a surface level opposition; Hobbes posits a radically different human anthropology and metaphysics. He rejects outright the Aristotelian understanding of human nature and from this rejection blossoms a more terrifying, depraved, dare I say pseudo-Calvinist, understanding of the primordial nature of man. Furthermore, if Hobbes posits a pseudo-Calvinist idea of human nature, then his understanding of governance and law is so very Cartesian and Deistic. Therefore, wherein a Thomistic vision of law and nature acknowledges a divine component that is the measure of all other types of law (i.e. eternal law), demonstrating a rational principle that is embodied/incarnational, which is evident in the types of law which flow from the base (eternal law/God Himself), Hobbes believes that God adjudicates the burden of governing to the sovereign, thus there is no eternal law present in the created world. The product of this rationale is a system of political philosophy in which the will of the sovereign is the law; the will of the sovereign is the standard of morality and whether a law is just or unjust; the will of the sovereign is the good of the people; the will of the sovereign is unlimited and should always go unchallenged by his subjects.

Having been located in the will of the sovereign, law, then, is not located in the embodied reason of a teleological created world; reason is not the measure and standard of law, but rather, the only measure and standard of law is the will of the sovereign in which absolute power is possessed. The sovereign is the legitimate public authority that the assembly of men, seeking peaceful existence, voluntarily renounce their individual sovereignty (proper to the natural state of war),“...authorize all the actions and judgements, of that...assembly of men...as if it were his own, to the end, to live peaceably amongst themselves, and be protected against other men.” This action on the part of the said assembly of men is the institution of the ‘commonwealth’; the commonwealth is the covenant in which the sovereign, whether one man or an assembly of men, is given total authority within the said ‘state’.

The commonwealth is not a natural product of human nature. Unlike the view of Aristotle and St. Thomas, Hobbes argues that the lex naturalis can be reduced to self preservation of each individual person; “Nature hath given to everyone a right to all; that is, it was lawful for every man, in the bare state of nature...to what he would , and against whom he thought fit, and to possess, use, and enjoy all what he would, or could get.” Whereas an Aristotelian and a Thomistic system argue that the polis is a natural manifestation of man and his natural tendency to communion and desire for friendship, Hobbes asserts that the natural, war-state of man means that men seek each other's destruction and exploitation. All men, where civilization lacks, are hopelessly self-serving, egotistical, and guided absolutely by passions. There is a glaring ‘disunity’ in Hobbes’ account of humanity and, in extension, his idea of law. It is argued that Hobbes embraced a system of mechanistic materialism; such a system, in the context of the Enlightenment, can be traced to the Cartesian shift in philosophy. Basically, a mechanistic materialist believes that all things are reducible to material bodies in motion and, therefore, Hobbes applies these principles to his political and moral vision. The physical body and incorporeal soul does not constitute a metaphysical unity but rather, the body and soul are separate; the mind is but a series of “physiological motions”, while the body is a combination of various biological parts which react to stimuli in a certain way, and, being predisposed mechanically to react to the stimuli, cause the sense motion. The idea of all as motion figure prominently in Hobbes’ moral theory and, by necessity, his understanding of law. One endeavors to work towards and appetite or desire or to work away from an aversion; this distinction can be made more clear by supplementing to the word desire, love; to the word aversion, hate. Therefore, in the natural state of man, there is no such thing as objectively good or bad actions. Furthermore, due to the “continual mutability of man”, these appetites and aversions are always changing; in fact, Hobbes writes: “...it is impossible that all the same things should always cause...same appetites...aversions...much less can call men consent, in the desire of any one and the same object.” All is subjective and reliant on the dispositions of each individual person; all that can be measured by any type of natural law is that all have a right to everything.

Lex naturalis tells us that the unquenchable desire for power/self-preservation, is also called happiness; happiness lies in physical gratification and, inevitably, intense conflict arises between competitors. It is important to note that Hobbes’ lex naturalis is not conceived in the same manner as Aquinas conceives the concept of natural law. Hobbes’ understanding of natural law is not something that is inherent within the human person, nor is it involve participation in a greater eternal law as in Aquinas; the natural laws expounded upon by Hobbes are precepts of commonality. all men are driven by motion (desires, aversions, etc…) and in their common experience men learn how to move toward their desires and away from their aversion, which constitute the lex naturalis. There is no natural amiability between people that produces a desire for a common good nor the natural development of a polis; life is one big game of “Survivor”. The natural state of man is, writes Hobbes, “continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short…”

As mentioned earlier, reason, according to Hobbes, is something existing in the mind a priori and is imposed on reality as a tool working on the physical as, for instance, on the body; reason is solely mental and functional. Through the instrumentality of reason, Hobbes further clarifies that the precept/general rule of reason is “...that every man, ought to endeavor peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war.” In this the fundamental law rests and, stemming from it, a second branch: “The sum of the right of nature; which is, by all means we can, to defend ourselves.” Hobbes then argues that, through the need for security which we come to know by the instrumentality of reason, we are impelled to: “...be willing, when others are so too, as farforth, as for peace, and defense of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself.”

How can these so-called ‘laws of nature’ or, more accurately termed, ‘precepts’, possibly be enacted if the human condition is as depraved as Hobbes asserts that it is? The answer lies in a third law: “...that men perform their covenants made.” This precept, according to Hobbes, is in which justice has its origin. This precept can be rightly termed the ‘efficient law’ because it is in accepting this precept that the other two precepts are effective. The idea that the nature of justice is in the acceptance of covenants is the base for Hobbes’ legal and political theory; the covenant can only be kept by men if there is a force to coerce them into doing so; this is the role of a civil power, the commonwealth.

All ideas of justice and injustice, morality and immorality, good and bad find their barometer in the sovereign power of this commonwealth. Therefore, the idea of objective justice and injustice is not present in humanity naturally; it is an external imposition by an artificial, civil power. Only something artificial and equipped with supreme authority over its subjects, the sovereign of the commonwealth, can ensure that men continue to honor the covenant made; the sovereign must enact punishment so terrifying that any calculation concerning the breaking of a law or transgression against the will of the sovereign must take in consideration a punishment far outweighing any perceived egotistical gain. Furthermore, all of the rights and faculties of the sovereign, derived from the establishment of the commonwealth, are absolute and must be equally applicable to all subjects. In this way, Hobbes believes that internal cultural strife, disputes among competing levels of government, sectarianism, etc…) can all be successfully overcome by the absolute will of the sovereign. Modern critics of perceived government overreach are fond of saying things akin to the government having no right or ability to ‘legislate morality’; Hobbes, on the other hand, most certainly believes that government should legislate and define morality for without the sovereign there could be no such thing as morality, justice, right, wrong, etc…).

The aforementioned rights and faculties of the sovereign can be thus categorized: obedience to the sovereign no matter what; no breach of the covenant by sovereign or his subjects; any opponent of the sovereign during deliberation must consent to his authority once the covenant is established; The actions of sovereign are, by extension, coterminous with the actions of all his subjects or vis versa. If a man complains about the actions of a ruler, he must criticize himself for they are also his actions. A sovereign could be inept but, “that a sovereign may commit iniquity; but not injustice, or injury in the proper signification.”; the sovereign has finally say over culture, of what ideas are to be permitted to be printed, what speech is acceptable for, “For the actions of men proceed from their opinions; and in the well governing of opinions, consisteth in the well governing of men’s actions, in order to their peace, and concord...nothing ought to be regarded but the truth; yet this is not repugnant to...peace. For doctrine repugnant to peace, can no more be true, than peace and concord can be against the law of nature.”; the sovereign has total power to prescribe all rules governing the affairs of men, that they may know what they can do and not, possess and not possess and that they may know their propriety.

Hobbes’ understanding of law, then, is one that is reduced simply to what Aquinas would term the human/positive law. There is no eternal law nor a natural law. All concepts of justice and such are artificial, imposed on each man by the leviathan/sovereign, in order to master humanity and save man from his natural self. Therefore, according to Hobbes, men move towards the artificial state out of fear of violent death that they may voluntarily place themselves under the law of the state; the law of such state is found within the will of the sovereign (whether one man or an assembly) absolutely and this absolute power is imposed on man to curtail his nature, thus saving him from a short life of misery and brutal violence. Whereas, Aquinas argues that law is, like reason, something natural and embodied, which men realize as they live life, participating analogously in the eternal law (God) via the natural law and its particular applications (human/positive law). Men cannot flourish or attain happiness which is their end, according to Aquinas, without acting in accord with the eternal law; a human, as a rational and corporeal being, participates in this law analogously through the natural law; these immutable principles of the natural law find their practical, particular application in time by human/positive law.

Of the two, whose thinking, in light of the American experiment, holds more sway in the American political and legal system? Contemporary America presents a difficulty in attempting to answer this question. This is due to the current, rather fierce, debate taking place over the correct interpretation of the United States Constitution and its application in life of each American. This debate is inextricably related to the future of American jurisprudence, application of the law, and on the very nature of law and morality as conceived by the federal government and experienced by the American public.

The American founders were certainly influenced primarily by the ideas of the Enlightenment. Many of the principles found in the founding documents of the United States are directly derived from Enlightenment ideals, especially the wholehearted embrace, at least theoretically, of egalitarian principles, the primacy of individual conscience and the emphasis on the inalienable rights of men. The presence of abstract rights being accredited to men is certainly not Thomistic, but it is also not entirely Hobbesian. The polarity present between the classical and medieval philosophers and those of the modern and postmodern era are manifested in the American political-legal system. Although the rights spoken of in the Declaration of Independenceare guaranteed by the Constitution, an artificial governor, the Constitution is a guardian of these rights, not the producer of them. This is a critical distinction which demonstrates that the American state does not consider the Constitution to be the originator of justice, but rather a guardian of rights already present in the life of each individual man, woman and child.

Both the Declaration of Independence and the United States Constitution are certainly measures of the rights that they speak of, however, there is an appeal to the “Laws of Nature and Nature’s God” in their justification for political separation from Great Britain. Furthermore, there is articulation that these laws are “...truths...self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,...” These words are taken from the opening paragraphs of the Declaration of Independence. They affirm that the unalienable rights of men are self-evident and bestowed by their creator and that the government, although artificial, is established to be the guardian of these truths; not, as in Hobbes’ vision of the leviathan, a man or assembly of men, which is the absolute originator, measure, and executor of justice and completely conditional upon its own will and nothing else. In this way, coupled with the establishment of limited branches of representative government not embodied in a person but in ideas enshrined in a governing document (the Constitution), the Founders differed in vision with Hobbes. There optimism concerning the rights of men is also more akin to the Aristotelian-Thomistic vision of human nature; it is not necessary for their to be an overpowering, mortal god, but rather, a guide to allow for human flourishing. Furthermore, the rights of life, liberty and the pursuit of happiness presuppose individual human freedom which is not coterminous with the will of the sovereign; these rights are simply guarded by the sovereign (the Constitution).

The Declaration posits these unalienable rights in an abstract way. Are they general principles? Yes. Are they immutable? Yes. Are they natural? It can be argued that , yes, indeed, that in light of the American founding documents these rights are embodied and inherent to all human beings; therefore, it can be argued that the founders’ vision of the ‘laws of nature’ are, in reality, not abstractions but are more similar to the Thomistic understanding of the eternal law-natural law-human law relationship. There is an appeal, it seems, to divine providence that is completely absent in Hobbes and is not quite purely deistic, either. In other words, there is an appeal to a real natural law and a commitment to legislate positive law in context and in accord with this natural law. The appeal to the Creator or Nature’s God also demonstrates, at the least, a generic view among most of the founders of the natural law being derived from God; something which can be compared to the Thomistic relationship between the eternal law and the natural law.

All things considered, the debate over how best to interpret the Constitution as a concrete, relatively immutable document (concerning the Bill of Rights, at least) or as being a living document as subject to the mores, values and trends of the time in which America happens to be in, could render the initial intentions of the founders as null, and furthermore, could very well lead to an American political and legal philosophy and praxis more in line with the a Hobbesian view of the state, law and human anthropology. If the Constitution is a living document subject to the whims of the masses at any particular moment in time, then that subtle, yet pervasive appeal to the divine and to self-evident, inalienable rights or laws of nature become mere words empty of substantial meaning. If there are no immutable principles or laws of nature, no appeal to larger participation in some divine providential ordinance, then the state becomes tyrannical; the concept of justice and injustice, just and unjust, good and bad, moral and immoral become disembodied from nature and embodied in the will of the sovereign. The state, now being the arbitrator of these things formerly recognized as arbitrated by God, becomes not the guardian but the ruler; the will is no longer in the document but in that man or select assembly of men that interpret the constitution in the way that most perfectly expresses their own will. All else then, is considered unjust, immoral and bad; thus the American Leviathan is realized.

This debate is being fought in a tangible way in the American court system, hence why the conversation about law and its nature is utterly vital to the health of the American republic. There have been several glaring cases of non-rational and unjust court decisions handed down by the highest court (the United States Supreme Court) in the latter half of the twentieth century. One of most egregious violations of the natural law due to American judicial activism is the infamous Roe v. Wade decision in 1972, effectively legalizing abortion. In penning the majority opinion, Justice Blackmun writes: “State criminal abortion laws...that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy...violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.” (Emphasis added) This is clear product of the Hobbesian vision of the sovereign being the sole standard of justice and morality. A right in this case, is derived from an interpretation of the fourteenth amendment to the Constitution consistent with the living document theory; notice how subjective the interpretation is in light of the wording of the actual amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Personhood, rights, happines -- all become a priori ideas in the mind and, in extension, in the will of the sovereign as observed in the majority opinion of Roe v. Wade. The law then, is just the subjective articulation of the will of the sovereign.

Since its inception, the United States has always existed, politically and legally, in tension between the polarity manifested in pre-modern and modern conceptions of law, human nature, politics, etc…); both the Thomistic and the Hobbesian views of these perennial questions vie for dominance in the American legal, political and cultural landscape. The Roe v. Wade decision is one of the premier examples of how this polarity is far from resolved.