History as rhetoric in Hobbes' Dialogue of the

Common Laws and the rise of modern philosophy

By

Giuseppe Mario Saccone

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CHAPTER I

INTRODUCTION

Aim and method

My aim in this thesis is to situate A Dialogue between A Philosopher and A

Student of the Common Laws of England within the intellectual context in which it

was written, i.e. that of modern philosophy and science, which is also the context of

the central concept of Hobbes' political theory, that of civil science.1 In the pursuit of

this aim, I will follow Quentin Skinner's method by trying to identify what Hobbes

was doing in writing A Dialogue.2 In this way, I will follow the well known

"Cambridge" approach to political theory.3 According to this approach, in order to

gain a valid historical understanding of what authors were doing in writing their

works, we should examine the context "as an ultimate framework" for helping to

recover what a writer intended to communicate "in a society of that kind", rather than

insisting either on the autonomy of the text itself as the sole necessary key to its own

meaning or on the context "as the determinant of what it is said".4 Hobbes must be

understood bearing in mind that, even if we think only in terms of modern, pre-

modern, and post-modern philosophy and science, he played a part in bringing into

being what was not an already settled context, i.e., he was, of course, an agent at a

time of vast changes in intellectual perspective. This means that I will treat Hobbes'

claims about English jurisprudence not simply as propositions to be understood by

their meaning, i.e. by the sense and reference attaching to words and sentences, but as

moves in an argument, i.e. as a linguistic action to be understood by the range of

things that Hobbes was doing by his use of words and sentences.5 As Skinner points

out, the central insight of this method is most economically conveyed by

1 See, Quentin Skinner, Reason and rhetoric in the philosophy of Hobbes (Cambridge, Cambridge University Press, 1996), p. 7. 2 See, James Tully, "The pen is a mighty sword: Quentin Skinner's analysis of politics", Meaning and Context: Quentin Skinner and his Critics, Edited by James Tully (Cambridge, Polity Press, 1988), pp. 7-25, p. 8.3 The "Cambridge" approach to political theory was enunciated by Skinner in the 1960s. See: Quentin Skinner "Meaning and understanding in the history of ideas", History and Theory, 8 (1969), pp. 3-53.4 Ibidem, p.49.5 See: Quentin Skinner, Reason and rhetoric, pp. 7-8.

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Wittgenstein's remark in Philosophical Investigations that "words are also deeds”.6 In

accordance with this insight, I seek to indicate what traditions Hobbes in A Dialogue

reacts against, what lines of argument he takes up, what changes he introduces into

existing debates.7 My claim is that A Dialogue represents the culmination of Hobbes'

science of politics. I want to argue that the general principles of Hobbes' political

theory are integrated into the theoretically significant characteristics of A Dialogue,

i.e. they explain the substantive characteristics as opposed to the presentational or

rhetorical ones. Despite his denigration of historical knowledge, his use of it here is

not inconsistent with his deductive method.

In this introduction I explain the reasons for taking as points of reference in

understanding the intellectual context of Hobbes' Dialogue his reaction both to

rhetorical humanism and to Renaissance scepticism. Hobbes is deeply worried by the

danger posed by moral and epistemological relativism. In A Dialogue he tries to

overcome this danger by employing the language of persuasion, i.e. the "art of

rhetoric", in order to convince the people to be instructed, and educated by the "truth"

of his "science" of politics and jurisprudence. By doing so, Hobbes is engaged in a

classic Skinnerian speech act "move", in employing persuasion, and the techniques of

"eloquence", in the service of his "science". Hobbes did not want to present his

argument in favour of absolute sovereignty as one involving a change in the legal

system. Accordingly, given the English preoccupation with the past, he needed to

justify this position by recourse to history. However, Hobbes' conception of

sovereignty was based on rationalist principles which denied that historical

knowledge could be the basis of a scientific politics and jurisprudence. In fact, he

criticized the common lawyers for their use of history to ground their conception of

sovereignty according to which law stands even against the sovereign. Paradoxically,

Hobbes appealed to history in order to refute the constitutive role of the historical

arguments which were at the foundations of the political positions maintained by his

opponents.

The structure of this introduction is the following: I begin by examining the

findings of Quentin Skinner's book Reason and rhetoric, which analyses the main

6 See: Quentin Skinner, "A reply to my critics", Meaning and Context, pp. 231-288, p. 260; also Wittgenstein, Philosophical Investigations, 2nd edn., Translated by G.E.M. Anscombe (Oxford, Basil Blackwell, 1958), para. 546, p. 146e.7 See: James Tully, "The pen is a mighty sword: Quentin Skinner's analysis of politics", pp. 7-8; also "An interview with Quentin Skinner”, Cogito (August 1997), pp. 69-76, p. 71.

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features of classical rhetoric and its influence on Hobbes testified by his use and

reaction to the elements of the ars rhetorica and in particular to the techniques of

ornatus; then I examine Hobbes' objections and use of rhetoric against the political

discourse of Renaissance humanism which has at its core Roman republicanism and

the idea of liberty, to which he opposes his narrow view of freedom according to

which to be free means to be physically un-coerced with respect to a particular act;

finally, I locate Hobbes' political theory and reaction and criticism against the culture

of Renaissance humanism within the modern philosophical project which is set to

provide, as pointed out by Richard Tuck, a scientific means for the authoritative

resolution of epistemological doubts concerning truth and rhetorical disputes

involving evaluation.

The results of my analysis – I hope - will give to the reader a characterization

of the relation between Hobbes' avowed goal of a deductive philosophy which

eschews rhetoric and history and the fact that in A Dialogue he employs both

rhetorical and historical modes of argument. I will explain this reappropriation of

history and rhetoric in a critical and - if I may say so – qualified support to Quentin

Skinner's views - which I consider not as alternative but as complementary to the

views of Richard Tuck, by giving a particular and reasonably contextualized way of

understanding the relation between deduction, rhetoric and history. I will argue that

because A Dialogue’s appeal to history corroborates conclusions reached

independently by deductive reasoning, it is not contrary to Hobbes' scientific method.

However, before starting to analyse what Hobbes in doing A Dialogue, I will discuss

the findings of Quentin Skinner's recent book Reason and rhetoric in the philosophy

of Hobbes.

Prelude on the findings of Quentin Skinner's Reason and rhetoric

Skinner's book gives new credibility to the thesis that Hobbes' concern for

matters of elocution and style is a reflection of the intellectual milieu in which he

wrote.8 This milieu was characterized by the Renaissance assumption that the bulk of

all knowledge was contained in the works of the ancient writers as opposed to the

medieval conception of knowledge as a supernaturally infused wisdom.9 Hobbes'

8 See, Quentin Skinner, Reason and rhetoric, pp. 2-3,6-7.9 See: Ibidem, p. 24; also, Brendan Bradshaw, "Transalpine humanism", The Cambridge History of Political Thought 1450-1700, ed. J. Burns and Mark Goldie (Cambridge, Cambridge University Press, 1991), pp. 95-131, p. 108.

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education was centered around this belief which is also expressed in the preface to the

translation of Thucydides, one of his early writings in which he stated:

It hath been noted by divers, that Homer in poesy, Aristotle in philosophy,

Demosthenes in eloquence, and others of the ancients in other knowledge, do

still maintain their primacy: none of them exceeded, some not approached,

by any in these later ages. 10

Hobbes shared this view, according to which, since most if not all the knowledge has

already been discovered by the ancients, the main concern of the learned humanist

should not be with scientific enquiry or discovery, which during the first decade of the

seventeenth century had begun to be endorsed by Galileo and other astronomers (and

which was later to be endorsed by Hobbes himself), but with recovering and

transmitting the truths which were known in the past, and have been later forgotten or

obscured as manuscripts were lost or corrupted and arguments misinterpreted. 11 This

rhetorical concern with the transmission and recovery of knowledge explains Hobbes'

early engagement with the translation and exegesis of Thucydides and Aristotle and

his insistence on the importance of maintaining the relation between truth and

elocution. 12 However, by the time Hobbes discovered Euclides' geometry in the late

1620s, the idea that the transmission of knowledge was more important than scientific

enquiry was beginning to give way.13 This was particularly evident in astronomy,

because many scientists believed that the Ptolemy's system was successfully

challenged by the new Copernican theory. 14 Hobbes answered positively to this

change of mentality. 15 So when he wrote The Elements of Law in 1640 he set aside his

concern for the transmission of knowledge, and embraced instead the new method of

10 Thucydides, The Peloponnesian War, The Complete Hobbes Translation, with notes and a new introduction by David Grene (Chicago, The University of Chicago Press, 1989), p.xxi.11 See: Quentin Skinner, Reason and rhetoric, p. 24; also Juan Luis Vives, On Education: A translation of the De tradendis disciplinis, trans. and introd. Foster Watson (Cambridge, 1913), pp. 45, 274.12 See: Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, pp. 569-586, p. 576; Quentin Skinner, Reason and rhetoric, pp. 229-333; also, David Johnston,Rhetoric of Leviathan: Thomas Hobbes and the Politics of Cultural Transformation (Princeton, Princeton University Press, 1986), pp. 14-17.13 See, Quentin Skinner, Reason and rhetoric, pp. 215-216.14 See, David Johnston, The Rhetoric of Leviathan, p. 15.15 See, Ibidem, pp. 24-25.

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Galileo's science which investigated nature. 16 Skinner illustrates how Hobbes changed

his mind arguing that all major evolutions in his philosophy, including the subsequent

ones, are to be explained by a changing attitude towards Renaissance humanism and

the rhetorical tradition. 17 In order to show that this is the correct way to interpret

Hobbes, Skinner opens his book with a full in-depth examination, lasting more than

two hundred pages, of the rhetorical theories of Tudor and Stuart England which were

based mainly on Cicero's De inventione and De oratore on Quintilian's Institutio

oratoria and on the treatise of unknown author, Ad C. Herennium de ratione

dicendi.18 To my knowledge, this is the first time that a scholar has tried - avoiding

blatant historical anachronisms - to make an extensive and systematic use of the

linguistic background of the English humanists in order to explain the intellectual

context of Hobbes' science of politics. 19

However, paradoxically, Reason and Rhetoric challenges the conventional

wisdom holding that Renaissance humanism initiated the modern project of seeking to

appraise the culture of antiquity in its own terms. 20 In fact, Skinner argues that the

English humanists' attitude towards the major texts of classical rhetoric had little

concern for avoiding historical anachronisms. This is true in spite of the fact that they

produced improved editions and raised questions about authorship. 21 So because the

humanists lacked interest in appraising the differences between themselves and the

classical writers, Skinner assumes that the meaning of the classical texts on rhetoric

did not change when they were transplanted into the rather different social and

political world of early modern England. 22 Indeed, the attitude of the English

humanists reflected an extraordinarily strong, and perhaps from our point of view,

unjustified sense of cultural identity with the classical authors, especially the Latin

16 See, Quentin Skinner, Reason and rhetoric, pp. 250-255.17 See, Ibidem, e.g., pp. 334, 337. 18 See, Ibidem, Part I, Classical Eloquence in Renaissance England, pp. 1-211.19 My view is confirmed by other scholars. See, for instance, the following reviews of Quentin Skinner's Reason and Rhetoric in the Philosophy of Hobbes: G.M. Vaughan, History of European Ideas, Vol.23, No.l (1997),pp. 35-43, p.35; Don Herzog, Political Theory, Vol.25, No.6 (December 1997), pp. 893-895, p. 893; Kinch Hoekstra, Filosofia Politica, Anno XI, Numero 1 (Aprile 1997), pp.139-143, p.143.20 This commonly held view is expressed, for instance, by: Paul Dean, "Tudor humanism and the Roman past background to Shakespeare", Renaissance Quaterly, 41 (1988), pp. 84-111, p. 84.21 See, Ibidem, Part I, Classical Eloquence in Renaissance England, pp. 1-211.22 My view is confirmed by other scholars. See, for instance, the following reviews of Quentin Skinner's Reason and Rhetoric in the Philosophy of Hobbes: G.M. Vaughan, History of European Ideas, Vol. 23, N. 1 (1997), pp. 35-43, p. 35; Don Herzog, Political Theory, Vol. 25, No. 6 (December 1997), pp. 893-895, p. 893; Kinch Hoekstra, Filosofia Politica, Anno XI, 1 (Aprile 1997), pp. 139-143,

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ones, and via them also with Aristotle and the Greeks, together with a lack of interest

for reconstructing the different historical contexts in which each author was writing. 23

As a result, Skinner claims that there is nothing unhistorical in treating the views of

the vernacular rhetoricians of Tudor England as stemming from and akin to the

theories of Cicero and Quintilian yoked together. 24 Moreover, and most importantly

in view of the topic of my thesis, Skinner also argues convincingly that the pervasive

influence of the Roman theories of eloquence was also part of the intellectual milieu

of Hobbes. 25 The main argument put forward to prove this is the centrality of the

teaching of rhetoric in the grammar schools of Hobbes' youth. 26 Most significantly,

we are told that the two linguistic elements in the studia humanitatis undertaken by

the very young Hobbes, were first the more basic ars grammatical and then, once he

progressed, the ars rhetorica based on the theories of Cicero, Quintilian and on the

treatise Ad C. Herennium.27 The importance of this ars rhetorica is confirmed by the

fact that in some schools the top classes were actually known as the rhetoric classes. 28

To this we may add that there is clear evidence that Hobbes was recognized at a very

early age as being extremely clever at mastering this Renaissance curriculum. 29

Skinner also explains to us that scholars such as David Johnston have been

concerned with Hobbes' rhetorical tactics in Leviathan and thus they have neglected

to make an historically contextualized comparison between these tactics and the

specific linguistic features of classical rhetoric. 30 So the novelty of Skinner's findings

lies in the fact that, importantly for our historical understanding of Hobbes, he situates

his work within the Renaissance background of the humanist admirers of Cicero,

Quintilian and other ancient Romans writers. 31 These humanist admirers were people

such as Thomas Elyot, Angel Day and Henry Peacham. 32 This is to see Hobbes in a

23 This commonly held view is expressed, for instance, by: Paul Dean, "Tudor humanism and the Roman pas background to Shakespeare", Renaissance Quaterly, 41 (1988), p. 84 -111, p. 84.24 See, Ibidem, p.40.25 See, Ibidem, pp. 19-26.26 See, Ibidem, pp. 26-27.27 See, Ibidem, pp. 28.28 See, Ibidem, pp. 28-29.29 See: A. Clarke ed., "Brief Lives," Chiefly of Contemporaries, set down by John Aubrey, between the Years 1and 1696, Vol.1 (Oxford, Clarendon Press, 1898), pp.328-329; Richard Tuck, Hobbes (Oxford, Ox:University Press, 1989), p.2; Quentin Skinner, Reason and rhetoric, p.26.30 See, Ibidem, p.6.31 See, Kinch Hoekstra, Recensione di Reason and Rhetoric, p. 143.32 See, for instance: Quentin Skinner, Reason and Rhetoric, pp.20,63-65.

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new way. I will examine next the main features and the linguistic background of the

classical rhetoric described by Skinner.

Hobbes and classical rhetoric

The Tudor humanists considered the traditional five-parts syllabus of the

Roman rhetorical education described by Quintilian as the essence of knowledge. 33

As Elyot reports them, these five elements were: (1) grammar, i.e., the study of the

Latin and Greek languages; (2) rhetoric itself, also called dialectic; (3) classical

poetry, i.e., the study and imitation of Homer and Virgil; (4) history, i.e., the study of

the works of Herodotus, Thucydides, Caesar, Livy, Sallust and Tacitus; (5) moral

philosophy, especially through Plato, Aristotle's Ethics and Cicero's De Officis.34

As Skinner points out, Hobbes in his youth made some contributions to this

curriculum. 35 For instance, around 1627, he wrote a poem of some five hundred Latin

hexameters entitled De Mirabilibus, Pecci, Carmen, which was so popular that after

being published for the first time in 1636, was reprinted in 1666, 1675 and 1678, and

which later became famous enough to be known by distinguished readers such as

John Locke and Isaac Newton. 36 This poem which describes the "wonders" of the

Peak district in Derbyshire, is full of references to Homer and Virgil and follows

strictly the canons of classic epic verse. 37 But the still relatively young Hobbes made

an even more remarkable contribution to the studia humanitatis: he was the first to

translate the Greek text of Thucydides' History of The Peloponnesian War into

English. 38 This translation which was published in 1628 (or 1629 our style), reflected

the highest standards of humanist textual scholarship, and was for this reason widely

praised as an exceptional contribution to the study of the Greek language and history. 39 Significantly to this translation, Hobbes added a short dedication to his noble

patron, a brief introduction to the readers, and an essay entitled "Of the Life and

33 See: Ibidem, p.23; cross-reference, Quintilian, Institutio Oratoria, Vol.IV, 4 Vols., Edited and translated by H. E. Butler (London, Loeb, 1920-2), x.i. 27-36, pp. 16-22; x.i. 46, p. 28; x.i. 73, p. 42; x.i. 85, p. 48; x.i. 101, p. 58; x.i. 123, p. 70.34 See: Quentin Skinner, Reason and Rhetoric, p.21-22; cross-reference, Sir Thomas Elyot, The Book named the Governor, ed. S.E. Lehmberg (London, 1962), pp.27-28,30-39,50,57-58.35 See, Quentin Skinner, Reason and Rhetoric, pp.23 8-244.36 See, Ibidem, pp. 240-241.37 See, Ibidem.38 See, Luc Borot, "History in Hobbes's Thought", The Cambridge Companion to Hobbes, Edited by Tom Sorell (Cambridge, Cambridge University Press, 1996), pp.305-328, p. 312.39 See, Quentin Skinner, Reason and Rhetoric, pp.238-239.

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History of Thucydides", in all of which commended Thucydides for both the content

and the presentation of his thought. 40 This essay fully conformed to the rules of the

ars rhetorica pertaining to demonstrative, judicial and deliberative speech.41 I will

examine next these rules and their influence on Hobbes.

There was a measure of agreement among most educational theorists of Tudor

England about the range of genera into which rhetorical utterances should be

classified. 42 This consensus was largely due to the fact that they accepted the typology

originally proposed by Aristotle and approved by the Roman rhetoricians.43 That

Hobbes had an early familiarity with this typology appears from his selective

paraphrase of Aristotle's Rhetoric, which was published anonymously in 1637; 44 this

abridgement was entitled A Brief of the Art of Rhetorique. 45 As Hobbes' Brief reports,

Aristotle in book 1 chapter 3 divided oratory into three types: demonstrative (or

laudatory) whose aim is to point out what is "Honourable, or Dishonourable”;

judicial (or forensic) which is supposed to discover what is “Just or Unjust" in

particular situations; deliberative (or political) whose aim is "to proove a thing

Profitable, or Unprofitable”. 46 In interpreting Aristotle, Hobbes follows the opinion of

the Roman rhetoricians that deliberative oratory is most important for scientia civilis. 47 Indeed significantly, deliberative oratory is further divided into these five heads:

"Of levying of money"; "Of Peace, and Warre"; "Of the safeguard of the Country";

40 See: Thomas Hobbes, "To the Right Honourable Sir William Cavendish", The Peloponnesian War, The Complete Hobbes Translation, p.xx; "To the Readers", p. xxi; "On the life and history of Thucydides", p.576.41 See, Quentin Skinner, Reason and Rhetoric, pp.244-249.42 See, Ibidem, p. 40.43 See, Ibidem, p. 41.44 Aubrey tells us that this paraphrase of Aristotle's Rhetoric is Hobbes' work, "even though his name be not to it".See: A Clarke ed., "Brief Lives", Chiefly of Contemporaries, set down by John Aubrey, p. 359; also, QuentinSkinner, Reason and Rhetoric, p.38.45 A Briefe of the Art of Rhetorique (London, printed by Tho. Cotes, for Andrew Crook, no date). This work was entered in the Register of the Company of Stationers on 1 February 1636, i.e. 1637 our style, and ascribed to"T.H." See: Quentin Skinner, Reason and Rhetoric, p.38, note 182. A Briefe is included in the Molesworth's edition of Hobbes' works, see: The Whole Art of Rhetoric, The English Works of Thomas Hobbes of Malmesbury Now First Collected And Edited By Sir William Molesworth , 11 Vols., London, Bart, John Bonn, Henrieta Street, Covent Garden, facsimile reprint: Scientia, 1962), 6. A recent edition of A Briefe is published in: The Rhetorics of Thomas Hobbes and Bernard Lamy, Ed. John T. Harwood, (Carbondale, Illinois, Southern Illinois University Press, 1986), pp. 33-128.46 See, Ibidem, p.41.47 See, Quentin Skinner, Reason and Rhetoric, p.44.

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"Of Provision"; and "Of making Lawes".48 Hobbes also agrees with the Roman

rhetoricians who accused Aristotle of considering utilitas, instead of utilitas together

with honestas, as the aim of deliberatory oratory. 49 However, as Skinner rightly points

out, there is nothing in Aristotle which justifies this sneeringallegation. 50 In fact,

Aristotle was adamant that the exercise of the art of rhetoric should always seek and

could actually achieve the capacity to promote the truth:

For it lies within the province of the same capacity to discern both truth and

verisimilitude, in addition to the fact that truth is not beyond human nature and

men do, for the most part, achieve it. Hence to be capable of speculation with

regard to received opinions belongs to the very man who has a similar capacity

with regard to the truth.51

Bearing in mind this passage, Hobbes' view that Aristotle's Rhetoric was concerned

onlywith winning arguments without concern for truth, is in the words of Richard

Tuck to say the least, an "immoderate presentation".52 But in regard to this, Hobbes

must be understood in view of the fact that he was not a great admirer of Aristotle,

whom he considered, perhaps even more obviously so than Cicero, as an advocate of

mixed sovereignty, and for this reason he was denounced to Aubrey as "the worst

teacher that ever was, the worst polititian and ethick".53 Nevertheless, in spite of all

these derogatory remarks, Hobbes shared Francis Bacon's admiration for Aristotle's

Rhetoric, as he acknowledged when he remarked to Aubrey: "his [Aristotle's]

rhetorique and discourse of animals was rare".54 Indeed, Bacon spoke admiringly of

the Rhetoric as a work which analyzed the passions of the soul and which showed

how "to set affection against affection, and to master one by another" in order to

employ predominant affections fear and hope, for the suppressing and bridling the

48 See, A Briefe of the Art of Rhetorique in The Rhetorics of Thomas Hobbes and Bernard Lamy, pp. 42-43.49 See, Quentin Skinner, Reason and Rhetoric, pp.43,257.50 See, Ibidem, pp.256-257.51 Aristotle, The Art of Rhetoric, chap. 1. 1, 1355a, Translated with an Introduction and Notes by H.C. Tancred (London, Penguin Books, 1991), Section One, Introductory, pp. 68-69.52 See, Richard Tuck, “Hobbes moral philosophy", The Cambridge Companion to Hobbes, pp. 175-207, pp.195- 197.53 See, A Clarke ed., "Brief Lives", Chiefly of Contemporaries set down by John Aubrey, Vol.1, p.357.54 Ibidem; see also: Quentin Skinner, Reason and rhetoric, p.38.

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rest." 55 In the same way, Hobbes considered Aristotle's Rhetoric not only as an

account of human nature, but as a logic and pattern of civil speech. 56

In Aristotle the character of a rhetorical argument is determined by the character of

the persuasion that it is being sought, i.e. the three tasks of persuasion determine the

three types of rhetoric. 57 Because Aristotle seems to infer the motive of an action

from the effects or consequences attending it, his speech assumes an epistemology

congenial to the one of Hobbes. 58 This is because, in the words of David James, "it is

less reality than intelligibility that Hobbes looks for." 59 Indeed, Hobbes' main concern

is with demonstrating how effects followed from causes and with inferring causes

from effects. 60 So for instance, the causes of fear are not the emotions in themselves,

but are certain effects that are construed as signs of these things. 61 By following the

same method, Hobbes in A Dialogue can assign to Parliament, in spite of its

ostensible reasons, the desire to abolish the monarchy from the fact that it abolished

the monarchy. So both the Philosopher and the Lawyer maintain that "the Rebellion

was raised with design to put down Monarchy, and to that end Maintained".62 Again

in Behemoth the claim of the Presbyterians to govern the church by divine right is

seen as a sign of their desire “to change the monarchical government into an

oligarchy".63 In his works Hobbes disposes the set of given signs in the manner in

which he deems they make sense. 64 Aristotle's Rhetoric provides him with a model

for searching into the subjective dimension of man, into his motives and desires which

have important consequences for his life as a citizen. 65 A model provided by

55 Francis Bacon, The Advancement of Learning, 2, Works, Vol. III, Edited by James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, 14 Vols., (A) Vols. I-VII (London, Longmans, 1857-1861), p.438.56 See, Victoria Silver, "Hobbes on rhetoric", The Cambridge Companion to Hobbes, pp.329-345, p.342.57 See, H.C. Lawson-Tancred, Introduction to: Aristotle, The Art of Rhetoric, p. 17.58 See, Ibidem, p.22.59 See, David G. James, The Life of Reason: Hobbes,Locke,Bolingbroke (London, Longmans, Green & Co., 1949), p. 13.60 See, for instance: Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump:Hobbes, Boyle, and t) Experimental Life, (Princeton, Princeton University Press, 1985), p. 111.61 See, Victoria Silver, "Hobbes on rhetoric", The Cambridge Companion to Hobbes, p.342.62 A Dialogue between A Philosopher and A Student of the Common Laws of England , Edited and with Introduction by Joseph Cropsey (Chicago, The University of Chicago Press, 1971), P. 64.63 Behemoth Or The Long Parliament, Ed. Ferdinand Tonnies, London, Simpkin and Marshall and Co., 1889, Reprint with a new Introduction by M.M. Goldsmith (London, Frank Cass and Co., 1969), p. 75; see also, p: 45.64 See, Victoria Silver, "Hobbes on rhetoric", The Cambridge Companion to Hobbes, p.343.65 See, Ibidem, p.340.

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arguments such as Aristotle's attempt to grasp the motives which drive men to break

the law:

The motives from which men choose to harm and do base deeds against the

law are vice and lack of self-control. For if a group of men have either one of

several vices, in connection with that in which they are vicious they will also

be unjust: the illiberal man, for instance, in matters of money; the

intemperate man in those of the bodily pleasures; the soft man in tolerance;

the coward in connection with dangers (he abandons his associates in danger

through fear); the ambitious man because of status; the sharp-tempered man

through anger; the victory-lover through victory; the sour man through

revenge; the stupid man through being illuded about justice and injustice; the

shameless man out of contempt for reputation; and similarly all the others in

connection with each of the areas. 66

What Hobbes seeks to emulate of arguments such as this is Aristotle's method or

manner of speech. This method first resolves each problem into his elements, and then

out of them draws definitions, and from these definitions infers consequences out of

which in the end are extrapolated propositions about the way a speaker should

represent himself to an audience.67 In this respect, Aristotle's manner of speech

constitutes the prototype of Hobbes' own. 68 Nevertheless, this is by no means the only

source from which Hobbes derives his style. Indeed, Skinner argues convincingly that

the influence on Hobbes of the Roman rhetoricians, and of Cicero in particular, is

even greater that the one of Aristotle.69 I will analyze next the main features of

Cicero's and Quintilian's rhetoricand its influence on Hobbes.

According to Cicero and Quintilian, the capacity to make use of rhetoric is,

pace Socrates, the power or vis to teach and persuade at the same time. This capacity

is due to the fact that the true orator must be able to combine ratio with oratio, and

hence sapientia with eloquentia with the aim of docere, movere et delectare, that is to

66 Aristotle, The Art of Rhetoric, Trans. by H. C. Lawson-Tancred, chap. 1.10, 1368b, pp. 111-112; see also: A Briefe of the Art of Rhetorique, in The Rhetorics of Thomas Hobbes and Bernard Lamy, pp. 61-62.67 See, Victoria Silver, "Hobbes on rhetoric", The Cambridge Companion to Hobbes, p. 341.68 See, Ibidem, pp. 342-342.69 See, Quentin Skinner, Reason and Rhetoric, pp. 8, 37-38,244-245.

12

say, to teach, to move and to delight. 70 As Cicero pointed out through the example of

how cities were originally founded, this ars rhetorica had a particularly important role

to play in the scientia civilis. 71 Indeed, as he suggests at the beginning of De

inventione, men must create a union of a mutually advantageous and honourable kind

if they are to achieve their highest opportunitas, and since reason without the addition

of eloquentia cannot do any good, the founding fathers or artificiers of cities must

have all been in full possession of both wisdom and eloquence. 72 From this starting-

point, Cicero infers that the form of knowledge, or scientia, necessary for the proper

conduct of civil affairs is, first of all, a knowledge of how to establish a civitas and

then of how to maintain it in peace and prosperity. 73 Significantly, a large and crucial

part of this scientia is occupied by "artificiosa eloquentia" (artistic eloquence) whose

aim is "persuadere dictione" (persuading by speech). 74 Quintilian reiterates the same

argument of Cicero by arguing that reason and science in themselves have no inherent

power of persuasion, and that in order to persuade us of the truths that they enunciate

they require the emotional force of eloquence. 75 However, both Cicero and Quintilian

maintain that a "true orator" who was supposed to be a man gifted with virtue and

honesty, a bonus civis or vir civilis, should never rely exclusively on emotional

appeals in order to win over an audience, a mistake for which they blamed Greek

philosophy which in this way wrongly reduced rhetoric to garrulity. 76 In particular,

they ascribed this mistake to Socrates, who in Plato's dialogue Gorgias conceded to

the rhetoricians the power of persuading but not the one of teaching, and to Aristotle

who at the beginning of the Art of Rhetoric marked a contrast between the logical

method of instruction by scientific proofs and the shorter one by rhetorical means. 77

70 See, for instance: Quintilian, Institutio Oratoria, Vol.1, iii.iv.2, p.396; Vol.111, viii. pr. 7, p. 180, Vol.IV, xii.ii. 11., p. 388.71 See, Cicero, De inventione, Edited and translated by H.M. Hubbel (London, Loeb, 1949), i.v.6, pp. 12-14.72 Ibidem, i.i.1-i.ii.3, pp. 2-6.73 See, Quentin Skinner, Reason and Rhetoric, p.2.74 See, Cicero, De inventione, i.v.6, pp.12-14.75 See, Quintilian, Institutio Oratoria, Vol.I, ii.xvi, 14-17, pp.322-324.

76 See, Quentin Skinner, “Scientia Civilis” in classical rhetoric and in the early Hobbes", in Political Discourse Early Modern Britain, Edited by Nicholas Phillipson and Quentin Skinner (Cambridge, Cambridge University Press, 1993),pp.67-93,pp.70-71.77 See: Cicero, De oratore, Vol.II, Edited and translated by E.W. Sutton and H. Rackham, 2 Vols. (London, Loeb, 1942), iii. xvi. 60-61, p. 48; Quintilian, Institutio Oratoria, Vol.1, ii.xv, 18, p.308.

13

Cicero's view of what was to be the task of the rhetorician is best summarized in De

Oratore where he states:

I will conclude the whole matter in a few words, for my assertion is this: that

the wise control of the complete orator is that which chiefly upholds not only

his own dignity, but the safety of countless individuals and of the entire state. 78

Of course, this statement in particular, and the theories of Cicero, Quintilian and the

treatise Ad C. Herennium in general, must have all been well known by Hobbes since

the time he went to grammar school.79 But what is most significant in regard to this, is

that, as Skinner points out, this knowledge had an important influence on the

development of Hobbes' political philosophy. 80 Indeed, as attested by his early

translation of Thucydides, and by his late work, Leviathan, De Corpore, De Homine,

A Dialogue and Behemoth, Hobbes' idea of how speech acts upon the mind for the

common good, or conversely in the event of political conflict, is a rhetorical one,

specifically derived from Cicero. 81 It is rhetorical insofar as Hobbes makes us

understand things his way and leads us to embrace his truth by the way his speech

expresses it, which is Cicero's model of persuasion derived from Protagoras. 82

That Hobbes is directly referring to this Roman model of rhetoric is attested by the

early citations of Cicero in the introduction to his translation to Thucydides, and by

his account of speech in De Homine as the means both of covenant and civilization. 83

Now here is this clearer than at the beginning of the preface to his translation of

Thucydides. Indeed, therein Hobbes provides us with a practical example of the

rhetorical assumptions about the proper relations between mind, speech, and truth in

the conduct of public affairs. 84 He does this in an amusing seventeenth-century style,

by dedicating his book to the memory of the late Earl of Devonshire, who is the father

of the young Earl of Devonshire, who is the father of the young whom he acually

78 De oratore, Vol.1, i.viii.34, p.24.79 See, Quentin Skinner, Reason and Rhetoric, pp. 26-27, 55.80 See, Ibidem, pp.2-3.81 See, Victoria Silver, "Hobbes on rhetoric", p.333.82 See, Ibidem, p.337.83 See, Ibidem, pp.334,343 note 6.84 See, Ibidem, pp.334.

14

addresses in his opening speech. 85 Thus Hobbes in order to bring his translation to the

attention of the young earl, represents the senior Cavendish as the epitome of Cicero's

public man:

For his [the senior Cavendish's] own study, it was bestowed, for the most

part, in that kind of learning which best deserveth the pains and hours of

great persons, history and civil knowledge: and directed not to the ostentation

of his reading, but to the government of his life and the public good. 86

This description of the senior Cavendish, which Hobbes wrote in the flatterying style

typical of a formal address to a noble patron, is supposed to present the young

Cavendish with the Ciceronian model of the orator: a man who both in his public and

private life no one "was able either to draw or justle out of the straight path of

justice."87 This is character-fashioning, the leading of souls to the good which should

make the citizen conceive correctly and which the ancient Greeks called psychogogia. 88 Indeed, Cicero's art of rhetoric, like both Sophistic and Socratic speech by which it

was derived, was intended to achieve this power. 89

Later, in Leviathan, Hobbes pays tribute to his beloved friend Sidney Godolphin in

much the same manner as he did with Cavendish senior, and with Thucydides of

whom, again quoting Cicero, stated: "Agreeable to his nobility, was his institution in

the study of eloquence and philosophy." 90 In this way, Hobbes eulogized both

Cavendish senior and Godolphin in Ciceronian fashion, for having reconciled like

Thucydides, reason to eloquence in themselves. 91 So in tribute to his Godolphin,

Hobbes in Leviathan states:

I have known cleerness of Judgment, and largenesse of Fancy; strength of

Reason, and gracefull Elocution; a Courage for the Warre, and a Fear for the

85 See, David Grene, "Introduction" to: Thucydides, The Peloponnesian War, The Complete Hobbes Translation with notes and a new introduction by David Grene, pp.vii-xiii, p.viii.86 See, Thomas Hobbes, "To the Right Honourable Sir William Cavendish", Ibidem, pp.xix-xx, p.xix.87 Ibidem.88 See, for instance: Quentin Skinner, Reason and Rhetoric, pp. 74, 76, 81.89 See, Ibidem, p. 87.90 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, p. 570, Hobbes directly quotes Cicero's opinion about Thucydides also in: pp. 569, 577-578, 585-586.91 See, Victoria Silver, "Hobbes on rhetoric", p.338.

15

Laws, and all eminently in one man; and that was my most noble and

honored friend Mr. Sidney Godolphin; who hating no man, nor hated of any,

was unfortunately slain in the beginning of the late Civill warre, in the

Publique quarrell, by an undiscerned, and an undiscerning hand. 92

What Hobbes infers from the fact that, like in the case of Godolphin,

"Judgment" and "Fancy" can find place in the same person is very important because

as a result he states: "There is therefore no such Inconsistence of Humane Nature,

with Civill Duties, as some think."93 Nevertheless, this statement must be understood,

as Skinner points out, in view of the fact that Hobbes always maintains against

Aristotle that man is not by nature a political animal. 94 So here Hobbes means that

even though "Humane Nature" and "Civill Duties", like "Fancy" and "Judgement", are

not naturally consistent, they can still become so "by Education and Discipline".95

However, for Hobbes the speech and the behaviour of Godolphin does not

merely constitute a model which is supposed to character-fashion the readers. As

Victoria Silver points out, in this eulogy there is more than that: like the movements

in geometrical proof both embody and enact meaning, what Godolphin said and what

he did are mutually coherent. 96 In the same way, Cavendish educated his son by his

own civic example, and in Thucydides' history his ideas and their expression are

virtually indivisible. 97 So for instance in his comment to Thucydides, Hobbes

significantly quotes a sentence of De Oratore which says: "it is hard to say whether

his words do more illustrate his sentences, or his sentences his words”.98 All this

indicates that Hobbes is not so much concerned with the philosophical integrity or

coherence of speeches, but with the integrity of their effects, i.e. with the way speech

can move audiences, which is a concern of classical rhetoric shared by the English

humanists.99 This is the way by which to understand also the passage of De Homine

where he explains that it is because of the advantages derived from the capacity to use

92 Leviathan (Harmondsworth, Penguin Books, 1968), A Review and Conclusion, p. 718.93 Ibidem.94 See, Quentin Skinner, Reason and Rhetoric, pp.3 65-366.95 See, Leviathan, pp. 717-718.96 See, Victoria Silver, "Hobbes on rhetoric", p.338.97 See, Thomas Hobbes, "To the Right Honourable Sir William Cavendish", The Peloponnesian War,Complete Hobbes Translation, p.xx.98 Thomas Hobbes, "On the life and history of Thucydides", p.578.99 See, Victoria Silver, "Hobbes on rhetoric", p.338.

16

speech that mankind "have far surpassed the condition of other animals." 100 In fact,

most significantly, the greatest benefit of speech is that it allows us to "command and

understand commands”.101

For without this [benefit of speech] there would be no society among men,

no peace, and consequently no disciplines; but first savagery, then solitude,

and for dwellings caves.102

Here Hobbes’ concern is with maintaining the integrity of the effects of speech as a

means to keep peace and security. More precisely, he wants to move his audience into

believing that in order to maintain this peace and security it is necessary to obey the

commands of the sovereign. The same method is heightened in Hobbes' later use of

history as rhetoric in A Dialogue and in Behemoth. 103 Indeed, Hobbes' use of history A

Dialogue and in Behemoth was supposed to convince the readers to follow the

teachings of his science of politics by combining ratio with elocutio, i.e. rational

reasoning with historical arguments which confirmed the teachings of science by at

the same time embodying and enacting them. 104

However, Skinner points out that in following this method Hobbes did more than

genetically employing history as rhetoric in a creative way stimulated by his humanist

knowledge of the classics. Indeed, Skinner in Reason and Rhetoric is meticulously

accurate in illustrating how Hobbes self-consciously employed the specific skills or

faculties, also called "elements", which the Roman rhetoricians considered as

necessary in order to convince audiences. 105 I will next examine these "elements" and

Hobbes' use and reaction to them.

Hobbes' use and reaction to the elements of the ars rhetorica

In order to write or to speak with the maximum degree of clarity, elegance and

emotional force, a truly conscientious sixth-form pupil in the Elizabethan grammar 100 De Homine, in Man and Citizen, [Selections from] Thomas Hobbes' De Homine, translated by Charles T. Wood T.S.K. Scott-Craig, and Bernard Gert (Gloucester Mass., Peter Smith, 1978), chap.X, 3, p.39.101 Ibidem.102 Ibidem, pp. 39-40.103 See, Quentin Skinner, Reason and Rhetoric, p. 353.104 See, Luc Borot, "History in Hobbes's thought", The Cambridge Companion to Hobbes, pp.305-328, p.325.105 See, Quentin Skinner, Reason and Rhetoric, p. 367.

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schools of Hobbes' youth, was supposed to learn the five separate faculties or skills

possessed by the successful Roman orator. 106 These faculties are summarized in the

opening pages of Ad C. Herennium:

(a) The first faculty is inventio, the capacity to find out the considerations, true or

plausible, that may serve to make our cause appear probable;

(b) The second is dispositio, the capacity to order and distribute in the way most

suitable to our purposes the things we have found out;

(c) The third is elocutio, the capacity to make a proper description, i.e. the application

of appropriate words to describe the things we have found out;

(d) The fourth is memoria, the capacity to hold firm in the mind the things we have

found out, the words in which we wish to express them, and the order in which we

wish to present our arguments;

(e) The last is pronuntiatio, the regulation of voice, countenance and gesture in a

temperate and elegant style.107

According to Cicero and Quintilian, these five faculties constituted the elements of

the ars rhetorica itself. 108 However, each of the five was not accorded equal weight.

Few classical writers find much to say about memory and pronunciation probably

because these two faculties are most important in spoken oratory, whereas the basic

rules of the ars rhetorica are expected to apply to the written no less than the spoken

word. 109 Of course, this is not to say that Hobbes, especially in the humanist phase of

his career, underrated memory as a means of instruction. 110 In fact, he praised

Thucydides for making the best use of memory in order "to instruct the ages to

come.” 111

106 See, Ibidem, p. 45.107 See, Ad C. Herennium de ratione dicendi, Edited and translated by Harry Caplan (London, Loeb, 1954), i.ii.3, p. 6.108 See, Quentin Skinner, Reason and Rhetoric, p.45.109 See, Ibidem, p.46.110 See, Luc Borot, "History in Hobbes's thought", p. 313.111 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, p. 576.

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He [Thucydides] used as much diligence in search of the truth, (noting

everything whilst it was fresh in memory, and laying out his wealth upon

intelligence), as was possible for a man to use. 112

However, Hobbes has no sympathy for the spoken oratory in which memoria is most

important. 113 Moreover, he particularly dislikes pronunciatio. For instance, he

disparages Dionysius Halicarnasssius because: "he makes the scope of history, not

profit by writing truth, but delight of the hearer, as if it were a song." 114 Significantly,

Hobbes also notices about Thucydides' eloquence:

But yet was this his eloquence not at all fit for the bar; but proper for history,

and rather to be read than heard. For words that pass away (as in public

orations they must) without pause, ought to be understood with ease, and are

lost else: though words that remain in writing for the reader to meditate on,

ought rather to be pithy and full. 115

These remarks about Thucydides confirm that, because pronuntiatio makes use of

"words that pass away" mainly in order to win "present applause" in situations where

"a most violents ycophant" is thereby likely to be "also a most acceptable speaker

amongst the people", Hobbes does not consider it as a proper means of instruction. 116

So Hobbes, in accordance with Cicero and Quintilian, considers inventio, dispositio

and elocutio as the main means of persuasion.117 I will examine next these three

elements of the ars rhetorica.

It is necessary to make a preliminary remark. In English rhetorical theory the Roman

concept of inventio is rendered literally as the invention of arguments. However, this

is perhaps a misleading rendering because it suggests the idea of making up a case,

which is not what was originally intended. 118 In the classical conception, the faculty

of inventio was that of invenire i.e. of discovering the "places" in which suitable

arguments could be found with the purpose of presenting them in the most persuasive

112 Ibidem.113 See, for instance: Ibidem, pp.574,576,585.114 Ibidem, p.581.115 Ibidem, p.585.116 See, Ibidem, pp.574,576.117 See, Quentin Skinner, Reason and Rhetoric, p.376.118 See, Ibidem, p.46.

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style. 119 As Cicero points out, this is the most important of all the parts of the ars

rhetorica: "inventio... princeps est omnium partium”. 120 For Hobbes, Thucydides'

History represents the best embodiment of the Ciceronian inventio, i.e. of how

discovering or finding out suitable arguments should be done. This is most clearly

expressed in "On the life and history of Thucydides", where Hobbes states:

That the principal and most necessary office of him that will write a history,

is to take such an argument as is both within his power well to handle, and

profitable to posterity that shall read it, which Thucydides, in the opinion of

all men, hath done better than Herodotus...121

In the same passage, Hobbes also shows his agreement with Cicero's view about the

role and importance of dispositio, the second element of the ars rhetorica. So once

again, Thucydides epitomizes the Ciceronian skill according to which, after

discovering which arguments to use, the orator must learn to dispose them in the most

effective way. 122 According to Hobbes, Thucydides exemplifies this skill in a

magisterial way in the proeme to his History:

Thucydides writeth one war... and by propounding in his proeme the miseries

that happened in the same, he sheweth that it was a great war, and worthy to

be known... for that men profit more by looking on adverse events, than on

prosperity...123

Moreover, Hobbes praises Thucydides' dispositio for its linear qualities which follow

the chronological order of events avoiding digressions, and because it conforms to the

other criteria prescribed by the ars rhetorica concerning how to divide an argument.124

Most significantly, Hobbes argues in full compliance with the criteria of the ars

119 See, Ibidem, p.111.120 "Finding out the arguments... is the most important of all the parts of oratory." Cicero, De inventione, i.viip.20.121 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete HobbesTranslation, p.579122 See, Cicero, De oratore, Vol.1, ii.lxxvi-lxxxv, pp. 432-462.123 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, p.579124 See, Ibidem, pp.576-577.

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rhetorica, that a history is supposed to always follow the chronological order of

events and avoid digressions. 125 Hobbes states that this principle is rigorously

observed by Thucydides:

Digressions for instruction's cause, and other such open conveyances of

precepts, (which is the philosopher's part), he never useth; as having so

clearly set before men's eyes the ways and events of good and evil counsels,

that the narration itself doth secretly instruct the reader, and more effectually

than can possibly be done by precept. 126

As it appears from this passage, Hobbes in "On the life and history of Thucydides"

consistently argues that digressions should be reserved for extrapolations, and

tentative analyses should be avoided by proper historians. 127 This is one view which

Hobbes will change in A Dialogue and Behemoth, where history is inextricably linked

with philosophical digressions supposed to instruct and reform his contemporary

English people, who are guilty of the same disobedience to authority as the Athenians

of Thucydides' History. 128

"On the life and history of Thucydides" praises The Peloponnesian War for the

dispositio and relevance of the argument. With regard to the dispositio, the ars

rhetorica prescribed precise rules partly derived from Aristotle. 129 So according to

Hobbes' translation of Aristotle, the dispositio of an argument should consist of four

parts: "the Proeme, the Proposition, or (as others call it) the Narration; the Proofes

(which containe Confirmation, Confutation, Amplification, and Diminution;) and the

Epilogue." 130 However, Ad C. Herennium, expanded this scheme into six elements:

the exordium, the narratio, the divisio, the confirmatio, the confutatio and the

conclusio. 131 The narratio is where the orator lays out whatever information he has

relevant to the topic; the divisio where he distinguishes between the issues over which

he is in agreement with his adversaries from those which remain in dispute; the

125 See, Quentin Skinner, Reason and Rhetoric, p.244.126 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, p.577127 See, Luc Borot, "History in Hobbes's thought", p.313.128 Ibidem, p.314.129 See, Quentin Skinner, Reason and Rhetoric, p.47.130 A Briefe of the Art of Rhetorique in The Rhetorics of Thomas Hobbes and Bernard Lamy, p. 119.131 See, Ad C. Herennium de ratione dicendi, i.iii.4, p. 8.

21

confirmatio and the confutatio where he attacks his opponents and develops his own

side of the case. 132 Skinner argues that Hobbes' defence of Thucydides against his

detractors fully conforms to the dispositio recommended by Ad C. Herennium. 133

Hobbes concurs with Aristotle's Rhetoric, with Ad C. Herennium and with the

classical and Renaissance rhetorical tradition in general, also in his own discussion of

elocutio. 134 Elocutio was the last major talent that orators were asked to cultivate, and

consisted in the ability to write and speak with full expressiveness and thus in the

most commanding way. 135 All the Roman rhetoricians insisted that there are specific

elements and precise features of a successful eloquence. 136 The first is the ability to

speak purely and clearly, with clearness and lucidity, avoiding to make our speech

become contorted or lapsing into obscurity by troubling our listeners with riddles or

enigmas. 137 Contrary to their later reputation, the Roman rhetoricians considered

decorum and plainness as crucial elements of the excellence of style of true

eloquence. 138 Another element of elocutio highly appreciated by the Roman

rhetoricians, and resolutely endorsed by Hobbes, is perspicuitas. 139 So Hobbes

quoting Plutarch argues that Thucydides excels in perspicuity:

Plutarch in his book, De gloria Atheniensium, saith of him thus: "Thucydides

aimeth always at this; to make his auditor a spectator, and to cast his reader

in the same passions that they were in that were beholders.... these things, I

say are so described and so evidently set before our eyes, that the mind of the

reader is no less affected therewith than if he had been present in the

actions." There is for his perspicuity. 140

132 See, Ibidem, i.x. 18 to i.xvii.27, pp.32-54.133 See, Quentin Skinner, Reason and Rhetoric, p. 246.134 See, for instance: Ibidem, pp. 6, 48, 113, 121.135 See, Ibidem, p.47.136 See, Ibidem, pp.47-48.137 See, for instance: Ad C. Herennium de ratione dicendi, iv.xii. 17, pp.268-270; Cicero, De oratore, Vol.iii.xiii.49-50, pp.38-40, and iii.xlii.167, p.130; Cicero, De inventione, i.xx.29, p.58.138 See, Quentin Skinner, Reason and Rhetoric, p.48.139 See, for instance: Quintilian, Institutio oratoria, Vol.1, i.vi.41, p.130; ii.iii.8, p.220; Vol.111, viii.ii.1-2, pp. 196-198; viii.ii. 22, p. 208.140 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete HobbesTranslation, p.577.

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Perspicuity, etymologically derived from the Latin verb perspicere which means to

look through, is intimately associated with the faculty of sight and for Hobbes is

particularly important because it creates a kind of forceful impression and empathy in

the reader which does not easily fade. 141 For Hobbes it is because of this capacity of

perspicuitas to create powerful visual images that history is more forceful than

philosophy as a means for the transmission of knowledge, even though philosophy as

a mode of enquiry has more explanatory power than history. 142

However, according to Cicero and Quintilian, the orator in order to make a "winning"

speech, must yoke decorum and perspicuitas together with ornatus, i.e. together with

the ability to add appropriate and memorable words to the statement of one's case. 143

Skinner argues that the use of ornatus is the feature of classical eloquence with which

Hobbes was most concerned throughout his life. 144 I will next examine the main

features of ornatus.

It is to misunderstand the significance of ornatus if the term is translated as it often is

as "ornamentation" or "embellishment".145 This tends to convey the impression of an

interest in superficial elocutionary devices or gratuitous verbal ornament, which is to

miss the metaphorical force that the word ornatus had among the ancient Romans for

whom it was used to describe the weapons and accoutrements of war. 146 So to be

ornatus meant to be armoured and equipped for battle. 147 For the rhetoricians the

"ornaments" characteristic of elocutio were not mere decorations or embellishments,

but the weapons to be wielded by the orator in order to gain victory for his side of the

argument. 148 As a result, it was common to adopt the metaphor that the orator

deploying his ornatus was someone in a battle array. 149 Significantly, Quintilian

compares the orator whose speech is ornatus with a man wielding a sword that brings

141 See, David Johnston, The Rhetoric of Leviathan, p. 19.142 Sec, Ibidem, pp.20-21.143 See, Quentin Skinner, Reason and Rhetoric, p.48.144 See, for instance: Quentin Skinner, '"Scientia Civilis” in classical rhetoric and in the early Hobbes", p.79.145 See, for instance: Barbara J. Shapiro, Probability and Certainty in Seventeenth-Century England (Princeton. Princeton University Press, 1983), pp.228-229.146 See, Quentin Skinner, “Scientia Civilis” in classical rhetoric and in the early Hobbes", pp.73-74.147 See, Quentin Skinner, Reason and Rhetoric, p.49.148 See, for instance: Quintilian, Institutio oratoria, Vol.III, viii.iii.5, p.213.149 Concerning the different metaphors adopted on the one hand by Isocrates, and on the other hand by Cicero Quintilian, illustrating respectively rhetoric's "agonistic" nature with the metaphor of the orator seen as athlete competing in the gymnasium, and rhetoric's "fighting" nature with the orator seen as the soldier in battlefield, see: Gary Remer, "Political Oratory and Conversation: Cicero versus Deliberative Democrat Political Theory, Vol.27, No.l (February 1999), pp.39-64, p.43.

23

terror to the eyes, and frequently refers tothe weapons of oratory in reference to the

battles between contending parties in assemblies and inlaw courts. 150

According to classical rhetoric, the orator can deploy his ornatus in two ways: (a) by

directly challenging the statements made by the opposite side; (b) more subtly, by

recasting or amplifying his own arguments through tropes and figures of speech. 151

The Roman rhetorical theory pays more attention to the second method, which is also

the method most explicitly criticized by Hobbes. 152 The fact that the tropes and figures

of speech are seen by the Tudor rhetoricians as the crucial elements of ornatus,

elocutio and ultimately of rhetoric itself, is one of the most important legacies of the

Roman rhetorical theory and of Quintilian in particular. 153

According to Quintilian, a trope is a word or phrase used in such a way that turns its

proper meaning into "a different one in an especially powerful way".154 The most

powerful means to achieve this effect, i.e., "of deeply moving the feelings and

drawing special attention to things and placing them before our very eyes", is by using

a metaphor. 155 But a trope which is supposed to adorn and augment the vis of our

utterances, sometimes, like in the case of simile, can achieve this effect through a

transfer of usage rather than a direct alteration of sense. 156 Other examples of tropes

are said to be hyperbole, aestismus, metonymy, irony, synectoche, etc. 157 A figure is

different from a trope because it does not involve a change of meaning but only "a

certain unusual configuration to our speech".158 There are two types of "figures": the

figures of thought or of sentences, and the figures of speech or of words. 159 The figure

of thought expresses an idea in a conceptually challenging way, for example through a

150 See, for instance: Quintilian, Institutio oratoria, Vol.III, viii.iii.5, p.212; Vol.1: ii.xvi.10, p.322; ii.x.8, p.276; Vol.11, v.xiii. 11.151 See, Quentin Skinner, Reason and Rhetoric, p. 50.152 See, Ibidem, pp. 278-279.153 See, Ibidem, pp. 50-51.154 Quintilian, Institutio oratoria, Vol.III, viii.vi.i, p. 300.155 Ibidem, viii.vi.19, p.310; see also: Quentin Skinner, Reason and Rhetoric, p. 187. A metaphor is a word or phrase applied to an object that it does not literally denote in order to imply a resemblance, for instance: he is a lion in a battle. Cf.: The Collins English Dictionary.156 See, Quintilian, Institutio oratoria, Vol.111, viii.vi. 40-76, pp. 322-344. A simile expresses the resemblance of thing to another .of a different category, it is usually introduced by ay or like, for instance: he is ay brave as a 1: Cf.: The Collins English Dictionary.157 See, Quentin Skinner, Reason and Rhetoric, pp. 64, 206-208.158 Quintilian, Institutio oratoria, Vol.III, ix.i.4, p.350.159 Figurae sententiarum and figurae verborum or schemata; see also: Quentin Skinner, Reason and Rhetoric, pp. 64-65.

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rhetorical question. 160 A figure of speech gives to a statement a novel appearance or

emphasis through a creative linguistic configuration. 161 Importantly, Quintilian

attributes to this category also the paradiastole or technique of redescription, whereas

for Aristotle it was a species of metaphor; 162 Quintilian's view wins the widest

acceptance among the Renaissance rhetoricians. 163 There is a further distinction

between rhetorical and grammatical figures of speech. The former convey an arresting

effect by the use of a patterned or unusual word order. 164 The latter produce the same

result by the use of non-standard grammatical forms. 165 Quintilian argues that these

techniques of ornatus, when appropriately applied, can giveteeth to the fighting

qualities of a speech, improving the vis or emotional power of what the orator says so

that he can convince the listeners to accept his point of view. 166 As a result, as Skinner

points out, elocutio by the means of ornatus, becomes the most important element for

achieving the ultimate purpose of the ars rhetorica, which is to convince not so much

by the force of the content of what we say, but rather by what we do through our

linguistic action, i.e., by making use of the persuasive resources of language itself. 167

Hobbes first discusses the techniques of ornatus in The Elements of Law where even

though he tries to maintain a semblance of neutrality, his main concern is to argue that

the method of adorning the truth has no place in the construction of his science of

politics. 168 So Hobbes states that "all metaphors are (by profession) equivocal", and

that all "equivocation of words" ought to be avoided if "ratiocination or reasoning" is

"to be according to right reason." 169 Significantly, he also tells that it is from "fancy"

or imagination that:

... proceed those grateful similies, metaphors, and other tropes, by which

both poets and orators have it in their power to make things please or

160 See, Quintilian, Institutio oratoria, Vol.III, ix.ii.i, p.374.161 See, Ibidem, ix.iii.27, p.460.162 See, Aristotle, The Art of Rhetoric, Trans, by H.C Lawson-Tancred, chap.3.2,1405a, p.220.163 See, Quentin Skinner, Reason and Rhetoric, pp. 149-151.164 See, Quintilian, Institutio oratoria, Vol.III, ix.iii.i, p.442.165 See, Ibidem, ix.iii.35, p.464.166 See, Ibidem, ix.i.i, p.34.8167 See, Quentin Skinner, Reason and Rhetoric, p.51.168 See, Ibidem, pp.270-271.169 The Elements of Law Natural and Politic, in Thomas Hobbes, Human Nature and De Corpore Politico, Edited with an Introduction by J.C.A. Gaskin (Oxford, Oxford University Press, 1994), Part I, chap.V, 7, p.37, ; chap.V, 12, p.38.

25

displease, and shew well or ill to others, as they like themselves; or else in

discerning suddenly dissimilitude in things that otherwise appear the same. 170

The same arguments are expressed in the manuscript which Hobbes wrote in the early

1640s known as Anti-White, where he states that philosophy must be treated with the

methods of logic alone, and logic should be differentiated from the other arts, namely

history, rhetoric and poetry in which metaphors are admissible.171 Logic should not

include "tropes or figure", because they are inherently ambiguous and introduce

equivocation which is at odds with deducing the right consequences of definitions. 172

Hobbes thought the use of metaphor in scientific or philosophical writing was not to

be admitted, and insisted instead that philosophical propositions should be strictly

literal. 173 Indeed, he argued that the success of geometry is due to its absence of

metaphors, and that any science built on definitions as precise as geometrical ones,

would be as certain as geometry. 174 Aphorism and metaphors are acceptable only in

rhetorical style, because of their capacity for exciting emotions in such a way as to

move an audience towards being persuaded ,which is the aim of rhetoric. 175

As for the other techniques of ornatus, Skinner argues that Hobbes was particularly

preoccupied by the use of paradiastolic redescriptions which he regarded as the chief

obstacle to constructing a genuine science of morality. 176 Even though, as pointed out

by Richard Tuck, Hobbes never used the word "paradiastole", there is no doubt that

170 Ibidem, chap.X, 4, p.61.171 See, Thomas Hobbes: Critique Du Mundo de Thomas White, Edited by Jean Jacquot and Harold Whitmore Jones (Paris, Vrin, et Centre national de la recherche scientifique, 1973), [from now on Anti-White] Translated by Harold Whitmore Jones, Thomas White's De Mundo Examined (London, Bedford University Press, 1976), pp. 25 and 310. This lengthy and important scientific manuscript of five hundred pages, probably written in 1642-1643, contains some material that is tantamount to a first draft of De Corpore. According to Martinich, Hobbes in this work attempted to reconcile modem physics to orthodox Christian doctrine by arguing that philosophy must be treated with the methods of logic alone and that, by implication, philosophy and faith have two legitimate but distinct spheres of application and should not mixed. Whereas Thomas White's De Mundo published in 1642, was concerned to reconcile Aristotle, whom he considered the philosopher of the Catholic Church, and Epicurus' atomism. Hobbes' manuscript, untitled, is listed as fonds latin 6566 a in the Bibliotheque Nationale in Paris, and was first published in 1973. See: Aloysius P. Martinich, A Hobbes Dictionary (Oxford, Blackweil Publishers,1995),pp. 12,204-205,319.172 See, David Johnston, The Rhetoric of Leviathan, p.12.173 See, Aloysius P. Martinich, Hobbes: a biography (Cambridge, Cambridge University Press, 1999), p. 183.174 See, Anti-White, pp.256-257.175 See: Ibidem, p.25; also, Clara Mucci, "Hobbes/Shakespeare: The Politics of Language", in Thomas Hobbes e la Fondazione della Politica Moderna, edited by Giuseppe Sorgi (Milano, Giuffre', 1999), pp.513-521, p.517.176 See, for instance: Quentin Skinner, Reason and Rhetoric, pp.279,282-283,338-339.

26

he was very worried by the kind of practice that paradiastole was used to expose, i.e.

giving a false name to something. 177 In fact, he continuously denounced the practice

of redescribing virtues as vices and vice versa, because of the danger of conjuring up

a world of complete moral arbitrariness in which it is impossible to agree on the

application of evaluative terms. 178 Hobbes probably knew that Machiavelli, who also

had endorsed and himself resorted to the techniques of ornatus, had famously argued

that what counts as a virtue can be redescribed as vice and vice versa, if the necessity

to achieve the security of the state so requires. 179 That is to say, actions which are

usually blamed as wicked not only can, but indeed should, be redescribed as good and

recommended, if one wishes to be a serious adviser on political matters, because:

"doing some things that seem virtuous may result in one's ruin, whereas doing other

things that seem vicious may strengthen one's position and cause one to flourish." 180

Hobbes never makes any direct comment on this statement, nor does he ever mentions

Machiavelli, but he first denounced the practice of paradiastolic redescriptions in "On

the life and history of Thucydides", where he argued that in Athens at the onset of the

Peloponnesian war those demagogues "of great authority with the people" who

redescribed "the most dangerous and desperate enterprizes" as acts of genuine

courage, "were esteemed wise and good commonwealth's men," "whereas he that

gave them temperate and discreet advice, was thought a coward".181 For Hobbes, the

result of this confusion in the application of evaluative terms was that:

By this means it came to pass amongst the Athenians, who thought they were

able to do anything, that wicked men and flatterers drave them headlong into

those actions that were to ruin them; and the good men either durst not

oppose, or if they did, undid themselves. 182

177 See: Richard Tuck, "Hobbes's moral philosophy", The Cambridge Companion to Hobbes, pp. 175-207, p. 2 also, Aloysius P. Martinich, Thomas Hobbes (London, MacMillan Press, 1997), p. 61.178 See, Quentin Skinner, Reason and Rhetoric, p.282.179 About the influence of Machiavelli on Hobbes, see: Arlene W. Saxonhouse, "Hobbes and the Beginnings of Modern Political Thought", in Three discourses: a critical modern edition of newly identified work of the young Hobbes, Edited by Noel B. Reynolds and Arlene Saxonhouse (Chicago, The University of Chicago Press, 1995), pp. 123-154,pp. 124,129.180 Niccolo' Macciavelli, The Prince, Edited by Quentin Skinner and Russell Price (Cambridge, Cambridge University Press, 1988), p.55.181 Thomas Hobbes, "On the life and history of Thucydides", The Peloponnesian War, The Complete Hobbes Translation, pp. 571-572.182 Ibidem, p.572.

27

The same practice of redescribing virtues as vices and viceversa, is denounced also in

The Elements of Law where, like later in De Cive, Hobbes argues that the result of not

being able to settle issues about what is to be called "right and wrong, good and bad,

and the like", is unending confusion and mutual hostility. 183 This criticism against the

practice of redescribing "right and wrong" in arguments in utramque partem, is a

reaction against what the English version of De Cive calls the "rhetorications" of

moral philosophers. 184 But paradoxically, as pointed out by Skinner, even this

criticism is a contribution to moral philosophy in the classical and rhetorical sense for

the very reason that Hobbes himself and his science of politics, is too much embedded

in the humanist rhetorical culture. 185 In Leviathan Hobbes partly confirms the same

views adding that "Understanding", i.e., "conception caused by Speech", is only

possible when we obey the constraints imposed by the ordained and constant

signification of words. 186 For this reason, words "of inconstant signification", like the

names of virtues and vices are dangerous and must never be used in putting forward

assertions and arguments when as a result of this people are deceived: 187

And therefore in reasoning, a man must take heed of words; which besides

the signification of what we imagine of their nature, have a signification also

of the nature, disposition, and interest of the speaker; such as are the names

of Vertues, and Vices; For one man calleth Wisdome, what another calleth

feare; and one cruelty, what another justice; one prodigality, what another

magnanimity; and one gravity, what another stupidity. And therefore such

names can never be true grounds of any ratiocination. No more can

183 The Elements of Law Natural and Politic, Part II, chap.XX, 10, p. 113.184 Philosophical Rudiments Concerning Government and Society (London, Printed by J.G. for Richard Royston, the Angel in Ivie-lane, 1651), in Man and Citizen, edited with an introduction by Bernard Gert (Gloucester Mass., Peter Smith, 1978), p.92. This is a translation of De Cive which, according to Noel Malcom, was made by the young poet Charles Cotton. See: Noel Malcom, Thomas Hobbes; The Correspondence, Edited by Noel Malcom, 2 Vols. (Oxford, The Clarendon Press,.1994), Vol.1, p.229; also Aloysius P. Martinich, A Hobbes Dictionary, pp. 319-320. Cf., the new translation of De Cive, Hobbes: On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome (Cambridge, Cambridge University Press, 1998), The Epistle Dedicatory, p.5.185 See, for example: Quentin Skinner, Reason and rhetoric, pp.299,316-317; cf, Leo Strauss, The Political Philosophy of Hobbes, Its Basis and Genesis, Translated from German by Elsa M. Sinclair (Oxford, ClarendonPress, 1936), passim, introduction p.5, chap.III, pp.35-43.186 Leviathan, Part I, chap.4, p.109.187 See, Quentin Skinner, Reason and Rhetoric, p.345.

28

Metaphors, and Tropes of speech: but these are less dangerous, because they

profess their inconstancy; which the other do not. 188

However, as pointed out by Skinner, it is important to stress that in Leviathan, unlike

in The Elements of Law and De Cive, Hobbes does not criticize the rhetorical

techniques of ornatus per se, but only when used for inappropriate or dishonest

purposes, i.e., as causes of errors and absurdities, and as obstacles to correct

"reckoning" and to "seeking the truth".189 Indeed, this perfectly conforms to Cicero's

and Quintilian's views. 190 So from the very title: Leviathan onwards, Hobbes himself

makes extensive and strategic use of metaphorical expressions. 191

There is a sense in which what Hobbes does is to self-consciously use rhetoric against

rhetoric: indeed, he deviously makes recourse to the art of persuasion whilst denying

to be doing that. 192 This is true, even though as we shall see, this is not the only use

that Hobbes makes of rhetoric in his historical arguments. 193 But in regard to this, and

moving now beyond the presentation of his views, Skinner has no space to develop

his argument far enough to take into full consideration Hobbes' increasing use of

historical arguments and reappropriation of history in his late works of the 1660s, i.e.

in A Dialogue and Behemoth. Indeed, these works are important because they

highlight that it is also Hobbes' reappropriation of history that qualifies his use of

rhetoric, not only viceversa. In fact, as I will argue in Chapter V of this thesis,

Hobbes' use of history is not related only to rhetoric, but also to the role of examples

and confirmation in scientific theories which are "conditional". Hobbes uses history to

confirm his scientific hypotheses about absolute sovereignty, i.e., that in England the

undivided sovereignty of the king was the best form of government for peace and

security, while the attempt to share his power with Parliament has led to civil war. So

in order to confirm that this is true, A Dialogue argues that the supreme power, the

188 Leviathan, Part I, chap.4, pp. 109-110.189 Cf. Ibidem, chap.5, pp.112-115.190 See, Quentin Skinner, Reason and Rhetoric, pp.345-346,351.191 In regard to this, and also for an interesting perspective on metaphors, it is useful to read an article by Moore. Professor Moore criticizes Hobbes because he considers methaphor as a semantic phenomenon involving change in the meaning of words, whereas metaphor is primarily an evocative exploitation of given meanings. See: F.C.T. Moore, "On Taking Metaphor Literally", in Metaphor: Problems and Perspectives (Brighton Sussex, The Harvester Press, 1982) pp.1-13, pp.2,12.192 See, Luc Borot, "History in Hobbes's thought", p. 324.193 See, Ibidem, p. 325.

29

command and the organization of the army, always belonged to the king and this

made the country prosperous, while when it did not civil war followed. 194

Hobbes versus the republican notion of freedom

However, if we are to abide by Skinner's rule that intellectual historians should focus

not on individual texts but on broader frameworks of thinking over longer periods of

time, in order to fully appreciate what he is doing in Reason and Rhetoric and how

this can help us in understanding A Dialogue, we are well advised not simply to read

what he says there, but also to bear in mind the link with the arguments developed in

his other works. 195 Of course, for Skinner this method is intended as the way to

understand the works of political theorists and other texts, not so much contemporary

commentators on the works of theorists. 196 However, as he himself is more than a

mere commentator but one of the current leading historians and also one of the most

influencial theorists of what intellectual history ought to be and do, it seems more

than plausible that the same method should be applied to understand his own work. 197

So if we read Reason and Rhetoric in the light of his other recent book Liberty before

liberalism, we find out that one of his broader undertakings is to "excavate" the

various features of the way in which the rhetorical culture of Renaissance humanism

read the classical Roman texts of Cicero, Quintilian, Livy, Sallust and Tacitus.

Importantly, he is interested in how this reading affected and in some cases shaped the

modern idea of liberty. 198 Skinner, like Hobbes, uses the term liberty interchangeably

with and as a synonym of freedom. 199

Skinner examines the implications of the link acknowledged by Hobbes himself,

between the rhetorical culture of Renaissance humanism and the appeal made during

and after the English civil war by radicals such as Marchamont Nedham, John Milton,

James Harrington, Henry Neville and Algernon Sidney, to Roman republicanism and

194 See, A Dialogue, p. 60.195 See, Quentin Skinner, "Meaning and understanding in the history of ideas", History and Theory, 8 (1969), p. 53, pp. 48-49.196 See, Ibidem, p. 3.197 See, James Tully, "Overview", Meaning and Context, pp.3-6,p.3.198 See, Quentin Skinner, Liberty before liberalism (Cambridge, Cambridge University Press, 1998), passim, pp. ix-x,10-ll.199 See: Ibidem, p.17; Leviathan, Part II, chap. 21, p. 261. However, according to Pitkin, freedom and liberty are not synonyms. See: Hanna Fenichel Pitkin, "Are Freedom and Liberty Twins?", Political Theory 16 (1988), pp. 523-552.

30

idea of liberty. 200 This link was based upon the classical ideal of the orator as the vir

bonus living in a civitas libera or free state, which had been revived and adapted by

those who defended republican liberty in the Italian Renaissance and most famously

by Machiavelli's Discorsi on Livy's history of Rome; 201 of course, this ideal was

considered by Hobbes as a threat to the stability of commonwealths. 202

However, according to Skinner, there is a sense in which the fact that Hobbes in

Leviathan makes again full use of the techniques of classical rhetoric after having

denounced them together with the Roman idea of liberty in The Elements of Law and

De Cive, testifies that ultimately the discourse of Renaissance humanism which has at

its core Roman republicanism and idea of liberty remains undefeated by his

arguments in favour of absolute sovereignty. 203 I will elaborate in the pages which

follow this important point. But Skinner goes even further by arguing that liberalism

itself rooted in Hobbes individualism, does not satisfactorily address the main concern

of what he calls the neo-roman discourse on liberty, according to which a citizen can

only be free as a member of a free state. 204 I will examine next how this "excavation"

made by Skinner helps us in understanding Hobbes' criticism of republicanism

culminating, as I shall argue in Chapter II of the thesis, in A Dialogue's staunch

support for absolute monarchy.

According to Skinner, the merit of Hobbes has been to demonstrate that, if there is to

be any prospect of attaining civil peace, the fullest powers of sovereignty must be

always vested in the figure of an "artificial man".205 Leviathan speaks about the need

for such an impersonal form of sovereignty, telling us that it could best be described

as the state. 206 This declaration announces the end of an era in which the concept of

public power had been treated in far more personal and charismatic terms. 207 Hobbes

played a central role in the emergence of the simpler and altogether more abstract

vision which has remained with us ever since, and which is embodied in the concept 200 See, Quentin Skinner: Liberty before liberalism, pp.12-16; cf. Reason and Rhetoric, pp. 71, 291, 433.201 See, Quentin Skinner: Liberty before liberalism, pp. 10, 27; cf. Reason and Rhetoric, pp. 284-285,357.202 See, for instance: The Elements of Law Natural and Politic, Part II, chap. XXVII, 10-12, pp. 168-169; chap. XXVIII, 5, p. l76.203 See, Quentin Skinner: Liberty before liberalism, pp. 91-95; cf., Reason and Rhetoric, p. 435.204 See, Quentin Skinner, Liberty before liberalism, pp. 111 -116.205 See, Quentin Skinner, "The State", in Contemporary Political Philosophy: An Anthology, edited by Robert E. Goodin and Philip Petit (Oxford, Blackweil Publishers, 1997), pp. 3-26, p. 17.206 See, Leviathan, The Introduction, p. 81.207 See, Quentin Skinner, "The State", p. 9.

31

of a "state" possessed of "sovereignty" in which the citizens ought to pay allegiance

not to those who exercise the rights of sovereignty, but rather to the sovereignty

inherent in the state or commonwealth itself. 208 Indeed, in De Cive Hobbes already

had argued that "citizens are obligated to each other to offer absolute and universal

obedience to the commonwealth", i.e., to whoever holds the sovereignty in virtue of

his office as head of state. 209

However, Skinner objects to the Royalist notion of liberty underlying Hobbes' theory

of the state, derived from The Digest of Justinian and taken up after the outbreak of

the English civil war by Griffith Williams, Dudley Digges, John Bramhall and Sir

Robert Filmer. 210 Indeed, by following this notion, Hobbes maintains that to be free

means to be physically un-coerced with respect to a particular act. So in De Cive he

states the scientific underpinnings of this principle, both ostensibly and in fact without

any rhetorical attempt "in lending the influence of attractive and emotive language to

hasty and superficial opinions", i.e., without moving the passions of his readers by

making use of elocutionary devices or historical arguments in order to win their

approval: 211

Liberty (to define it) is simply the absence of obstacles to motion; as water

contained in a vessel is not free, because the vessel is an obstacle to its

flowing away, and it is freed by breaking the vessel. Every man has more or

less liberty as he has more or less space in which to move; so that a man kept

in a large jail has more liberty than a man kept in a small jail. And a man

may be free in one direction but not in the other, as a traveller is prevented

by hedges and walls from trampling on the vines and crops adjacent to the

road. Obstacles of this kind are external and absolute; in this sense all slaves

and subjects are free who are not in bonds or in prison. Other obstacles are

discretionary; they do not prevent motion absolutely but incidentally, i.e. by

our own choice, as a man on a ship is not prevented from throwing himself

208 See, Ibidem, pp.3,18.209 Hobbes: On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, chap. XIV, 20, pp. 164-165.210 "Libertas est naturalis facultas eius quod cuique facere libet nisi si quid vi aut iure prohibetur", "liberty is the natural faculty of doing whatever one wants, unless the action in question is ruled out by physical force or law”. The Digest of Justinian, 4 Vols., Latin text edited by Theodor Mommsen with the aid of Paul Krueger, English translation edited by Alan Watson (Philadelphia, University of Pennsylvania Press, 1985), Vol.1,1.5.4, p. 15; see also: Quentin Skinner, "The State", pp. 5-6, 9-10.2211 Hobbes: On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, Epistle dedicator, 7, p. 5.

32

into the sea, if he can will to do so. Here too the more ways one can move,

the more liberty one has. And this is what civil liberty consists in; for no one,

whether subject or child of the family or slave, is prevented by the threat of

being punished by his commonwealth or father or Master, however severe he

may be, from doing all he can and trying every move that is necessary to

protect his life and health. 212

Skinner argues, perhaps unconvincingly given the variety of forms which liberal

ideologies have assumed historically, that liberalism itself is based on this notion of

liberty, as most famously embodied in Benjamin Constant's and Isaiah Berlin's views. 213 The implication of this notion which underlies Hobbes' theory of the state, is that

subjects under sovereigns whilst not free in respect of legally prohibited acts, are free

with respect to those acts not prohibited. 214 Hobbes argued that this is true of any

subjects under any kind or rule with no conceptual distinction available to

differentiate the liberty possible under an absolute monarchy, from that under a

popular republic. 215 So De Cive stated:

Some think that Monarchy has fewer advantages than Democracy, because it

has less liberty than Democracy. If by liberty they mean exemption to the

subjection due to the laws, i.e. the commands of the people, there is no

liberty anywhere, either in a Democracy or in any other form of

commonwealth. If they understand liberty to mean few laws, few things

forbidden, and those the sorts of things without which there would be no

Peace, then I deny that there is more liberty in a Democracy than in a

Monarchy. For Monarchy can rightly coexist with such liberty as well as

Democracyr. 216

Hobbes always held that it is absolutely wrong to believe that only obedience to

republican, as opposed to princely law, is liberty and that the English must avoid to do

so. 217 But in De Cive he believed that he could convince his readers of this idea solely

212 Ibidem, chap. IX, 9, p . l l l ; see also: chap. XIII, 15, pp. 150-151.213 See, Quentin Skinner, Liberty before liberalism, pp. 60, 112-117. For a criticism to Skinner's objections to liberalism, see: Alan Patten, "The Republican Critique of Liberalism", British Journal of Political Science, Vol.26 (January 1996), pp. 25-44, pp. 30-36.214 See, Ibidem, pp.5-10.215 See: Hobbes :On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, chap. X, pp. 121-122; also Leviathan, Part II, chap. 29, p. 369.216 Hobbes on the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, chap. X, 8, p. 121.217 See, Leviathan, Part II, chap.29, pp.369-370.

33

by the force of rational arguments, later he changed his mind. 218 In Leviathan he

acknowledged that "if there be not powerfull Eloquence, which procureth attention

and Consent, the effect of Reason will be little." 219 This is because, as Skinner points

out, in the late 1640s he came to consider the English revolution as a victory for the

irrational but overwhelming power of the neo-classical rhetoric of republicanism over

science and rationality. 220 So Hobbes in Leviathan in order to convince his readers not

to be deluded by the rhetoric of this neo-classical republicanism into believing that

under a republic they would enjoy more liberty than in a monarchy, himself makes a

rhetorical use of history to illustrate and impress in their mind that the congruence

between individual freedom and the freedom of the state is simply confused, and that

individual freedom has no necessary connection or even a tendency to be connected

with forms of government:

The Athenians, and Romanes were free; that is, free Common-wealths: not

that any particular men had the Libertie to resist, or invade other people.

There is written on the Turrets of the city of Lucca in great characters at this

day, the word Libertas; yet no man can thence inferre, that a particular man

has more Libertie, or Immunitie from the service of the Commonwealth

there, than in Constantinople. Whether a Commonwealth be Monarchicall, or

Popular, the Freedome is still the same. 221

Again in A Dialogue, Hobbes sought to show by the example of history, that belief in

the conceptual distinction between obedience to republican and princely law, led to

destructive attemps to limit the structure and the range of sovereign authority and that

this caused civil war. For this reason, Hobbes makes the Lawyer say:

'Tis not therefore the word of the Law, but the Power of a Man that has the

strength of a Nation, that makes the Laws effectual. It was not Solon that

made Athenian Laws (though he devised them) but the Supream Court of the

People; nor, the Lawyers of Rome that made the Imperial law in Justinian's

time, but Justinian himself... But you have heard how, in, and before the

lateTroubles the People were of another mind. 222

218 See, Hobbes: On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, chap. X, 9 pp. 122-124.219 Leviathan, A Review and Conclusion, p.717.220 See, Quentin Skinner, Reason and Rhetoric, p.435.221 Leviathan, Part II, chap.21, p.266.222 A Dialogue, p.59.

34

Of course, Hobbes makes these historical references because he understood well that

it is both rhetorically useful and psychologically plausible to attach the label of

opportunism to every ruling faction that whilst in pursuit of selfish interest, claims

hyperbolically - like the Parlamentarians before the civil wars - to act exclusively in

order to defend the rule of law. 223 However, Skinner thinks that Hobbes' arguments

against the notion of freedom as rule of law, do not do justice to the neo-roman theory

of free states. 224 It is true that this distinctive theory of liberty is based on a unified

conception of freedom, according to which states and individuals are free and unfree

in a similar and essentially holistic sense. 225 Nevertheless, the most important feature

of the neo-roman theory is that it considers freedom as a jural condition of persons

rather than, as for Hobbes, a quality of individual acts considered seriatim. 226 As a

result, to be free is to be governed by one's own will in the same fashion as later for

Rousseau. 227 This is not only true both for individuals and states, but it points to the

condition in which when an individual is governed by the will of the state, it is simply

meant by the will of the body of citizens, or the majority of them, or their

representatives. 228 The opposite is to be subject to the will of another, i.e., in the

words of the Digest of Roman Law, to be a slave: "Servitus est... qua quis dominio

alieno contra naturam subicitur." 229 Hobbes' criticism against this republican notion of

freedom is particularly relevant in order to shed light on why in the section on

sovereign power of A Dialogue, which I examine in Chapter III of the thesis, he does

not shy away from condoning or even endorsing what could look like a tyrannical

monarchy. In regard to this, however, according to Skinner, his arguments in favour

of absolute monarchy fail or refuse to acknowledge that the slave and the unfree

citizen lack liberty not because the totality or even a majority of their acts are subject

to a compelling legal restriction, but because they are subject to the right of

223 See, Stephen Holmes, "Political Psychology in Hobbes's Behemoth," in Thomas Hobbes and Political Theory, Edited by Mary G. Dietz (Lawrence Kansas, University Press of Kansas, 1990), pp. 120-152, p. 145.224 See, Quentin Skinner, Liberty before liberalism, pp.60,77.225 See, Ibidem, pp. 23-24.226 See, Ibidem, pp. 25-26.227 See, Ibidem, p. 29.228 See, Ibidem, p. 27.229 "A slave is... someone who, contrary to nature, is made into the property of someone else." The Digest of Justinian, Vol. 1, 1.5.4, p. 15.

35

jurisdiction of somebody else. 230 Indeed, Skinner is right! I will next examine more in

detail why.

Hobbes not only denies the connection between private and public liberty, but also

considersthe difference between "free citizens" and "slaves" mainly as a matter of

who they perform theirservices to. This is because he wants to emphasize the absolute

subordination of all the subjects tothe sovereign. 231 De Cive clearly states this idea

without historical illustrations or arguments"adapted to the passions" of the readers: 232

In every commonwealth and household where there are slaves what the free

citizens and children of the family have more than the slaves is that they

perform more honourable services in commonwealth and family, and enjoy

more luxuries. And this is where the difference lies between a free citizen

and a slave, that the FREE MAN is one who serves only the commonwealth,

while the SLAVE serves also his fellow citizen. All other liberty is

exemption from the laws of the commonwealth, and is reserved to rulers. 233

But in Leviathan and in A Dialogue, Hobbes makes a rhetorical use of historical

arguments in order to justify the same absolute subordination of the subjects to the

sovereign: so in chapter 20 of Leviathan, he appeals to the Bible showing how it often

refers to people under a sovereign as servants; 234 in the same fashion, in A Dialogue

he argues that since ancient times "subjects" and "servants" were equally submitted to

the laws of their sovereign rulers. 235 According to Skinner, these statements of

Hobbes' confirm that he refuses to appreciate liberty as a continuing condition rather

than as a quality of particular acts. 236 I agree with Skinner's view that Hobbes does

this self-consciously.

Indeed, Hobbes refuses to appreciate liberty as a continuing condition because he is

concerned mainly with whether the right of jurisdiction is currently being exercised to

specify restrictions on particular actions such as denying the king's right of levying

230 See, Quentin Skinner, Liberty before liberalism, p.77.231 See, Aloysius P. Martinich, A Hobbes Dictionary, p.272.232 See, Hobbes: On the Citizen, Edited and Translated by Richard Tuck and Michael Silverthome, chap.XII, 1 p.139.233 Ibidem, chap. IX, 9, p. 111-112.234 See, Leviathan, Part II, chap.20, p.258.235 See, A Dialogue, p. 159.236 See, Quentin Skinner, Liberty before liberalism, pp. 3, 8-41.

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troops and funds for them, or even a range of actions such as any other act

undermining the powers of the sovereign and likely to endanger sovereignty itself

which is necessary "for preservation of all Mankind." 237 For this reason, the

Philosopher in A Dialogue states that the law must "compel a Man to do otherwise

than himself pleaseth," and must "punish, or hurt him when he hath done a mischief." 238 This allows him to develop a powerful argument against republicanism by

suggesting that whenever the law demands obedience citizens are not at liberty, a fact

that is true of all political regimes. 239 However, as Skinner reminds us, Hobbes is not

worried by the fact that, as The Digest points out, even if currently there are no

specified wide-ranging restrictions, this does not prevent the condition being one of

slavery, if, at any time, at the will of the master, actions could be restricted. 240 Hobbes

rejects the idea reiterated by James Harrington, Algernon Sidney and later by

Rousseau, that slavery is coterminous not with actual coercion but with the potential

for arbitrary action, since the subject may then already seek to anticipate, and so

discount for, a punitive response. 241

Moving now from exposition to critical evaluation, Hobbes' rejection of the idea that

slavery is coterminous not with actual coercion but with the potential for arbitrary

action, explains one source of our difficulty in accepting the plausibility of his

conception of liberty. 242 This difficulty is relevant for my thesis because it helps to

explain one of the reasons for his use of history as rhetoric in A Dialogue: i.e., the use

he makes of it in order to convince his readers, which were influenced by both the

rhetorical culture and the republicanism of Renaissance humanism, to accept his

arguments in favour of absolute monarchy. That Hobbes needs this rhetorical

enterprise becomes particularly evident when he moves from considering liberty as a

quality of particular acts to reflecting on it as a continuing condition. 243 In fact, as we

have seen, his inability to distinguish between the condition of citizens under a

legitimate sovereign and those who are merely subject to coercive rule, depends on

the fact that for Hobbes all the citizens are equally subject to the will of the ruler who

237 A Dialogue, pp. 58-59.238 Ibidem.239 See: Ibidem, p. 66; also: Leviathan, Part II, chap. 21, pp. 266-267.240 See, The Digest of Justinian, Vol. 1, 1.5.4, p. 15.241 See, Quentin Skinner, Liberty before liberalism, pp. 60, 85-95.242 See, Ibidem, pp. 9-10.243 See, Leviathan, Part II, chap. 21, pp. 266-267.

37

clearly exercises Roman absolute dominium, and equally free with respect to his

silences: 244 in any case, a citizen has as much liberty "as they that have the

Soveraignty shall think most convenient." 245 This is true even though a subject always

retains the right to self-defence in case his life is threatened. 246

The sovereign has this power under any form of government and for this very reason

the subjects are also equally constrained under any form of government. 247 So the

result of Hobbes' argument is that, because freedom is a quality of particular acts but

not a continuing condition, to advocate republican freedom against absolute monarchy

is utter nonsense. 248 Yet when Hobbes in Leviathan and in A Dialogue is engaged in

the rhetorical enterprise of adapting his arguments to the historical predisposition of

his English readers, he is understandably anxious to sustain some distinction between

the condition of citizens under a legitimate sovereign from those who are merely

subject to coercive rule. 249 What enables him to distinguish between the two

conditions is a late development of his thought: the somewhat flimsy "authorization"

given by the subject of a legitimate sovereign. 250 So Hobbes in Leviathan states:

For in the act of our Submission, consisteth both our Obligation, and our

Liberty; which must therefore be inferred by arguments taken from thence;

there being no Obligation on any man, which ariseth not from some Act of

his own; for all men equally, are by Nature Free. And because such

arguments, must either be drawn from the expresse words, I Authorise all his

Actions, or from the Intention of him that submitteth himself to his Power,

(which Intention is to be understood by the End for which he so

submitteth;)The Obligation, and Liberty of the Subject, is to be derived,

either from those Words, (or others equivalent;) or else from the End of the

Institution of Sovereignty; namely; the Peace of the Subjects within

themselves, and their Defence against a common Enemy. 251

244 See, Ibidem, pp. 272-273.245 Ibidem, p. 271.246 See, Ibidem, pp. 268-269.247 See, Ibidem, p. 266.248 See, Ibidem, p. 267.249 See: Ibidem, chap. 20, pp. 255-256; also A Dialogue, pp. 59, 69250 See, Quentin Skinner, "Hobbes and the Purely Artificial Person of the State", The Journal of Political Philosophy, Vol. 7 No. l March 1999, pp. 1-29, p. 7.251 Leviathan, Part II, chap. 21, p. 268

38

So the authorization given by the subject of a legitimate sovereign is a voluntary

transfer of rights granted by the same person who was in possession of them. 252 The

rights transferred can be summarised as the blameless liberty of using our powers in

any way we judge necessary to defend our life against others and secure ourselves

against threats by anticipating them. 253 The sovereign is commissioned, in other

words, merely to exercise those of our rights which, so long as we exercise them

ourselves, will lead to war. 254 This means that legitimate sovereigns are merely

representatives, and because all representatives must themselves be authorised, the

public acts of a sovereign count as valid acts of the state if and only if he has been

authorised to perform them by each and every member of a multitude. 255 For this

reason, those who are merely subject to coercive rule but not the citizens under a

legitimate sovereign, still have, by the right of nature, the same liberty to defend

themselves as individuals in the state of nature. 256 However, in fact the difference

between the condition of citizens under a legitimate sovereign and those merely

subject to coercive rule remains flimsy because it differs only as the absolute

minimum for survival differs from the absolutely unbearable. 257 Indeed, because

Hobbes admits authorization under duress, the act of authorizing sovereignty is or can

be nothing more than the step by one or many individuals from outright slavery to

serfdom. 258 Hardly a great difference! In regard to this, Skinner correctly points out

that the neo-roman theorists arguing that it was only possible to be free in a free state,

succeeded in drawing attention to the fact that the Royalist notion of liberty

underlying Hobbes' political theory made citizenship and serfdom contiguous. 259And

because Hobbes acknowledged that they are contiguous, he also increasingly realized

that his absolutist conclusions were unpalatable. 260 Indeed, as I will argue more in

detail in Chapter II of the thesis, one of the reasons why he undertook the rhetorical

enterprise of writing A Dialogue is to make these conclusions more acceptable to his 252 See also: Ibidem, Part I, chap. 16, p. 218.253 See: Ibidem, chap. 13, p. 184; chap. 14, pp. 189-190.254 See, Ibidem, Part II, chap.18, pp. 232-233.255 See, Ibidem, chap. 17, p.228.256 See, Ibidem, Part I, chap. 14, p. 192.257 See, Murray Forsyth, "Thomas Hobbes and the constituent power of the people", Political Studies, VoLXXIX No. 2 (June 1981), pp.191-203, p.202.258 See, Leviathan, Part II, chap.20, p.255.259 See, Quentin Skinner, Liberty before liberalism, pp.59-60,68-77.260 See, for instance: A Dialogue, p.65.

39

English readers. So in A Dialogue he always insisted that no power strong enough to

protect men could be less than absolute. 261 Hobbes' position is not far from

anticipating William Paley, a theological utilitarian elder contemporary of Bentham's,

who was one of the most influential spokemen for what became the classical liberal

case. 262 Paley held that the aspiration to a republic of active citizens, despite claims

that it protected personal rights, was so Utopian that any definition of liberty which

necessitated it should be abandoned as destructive of "public order and

contentment".263

However, the main thrust of Hobbes' argument, later reiterated by Sir William

Blackstone, John Lind, William Paley, Jeremy Bentham, John Austin and Henry

Sidwick, is that liberty is a matter of what you are actually rather than potentially

restrained from doing, and of how many laws there are rather than who makes them

and how they are made. 264 If Hobbes is right, it follows as a result that the neo-roman

theory confuses liberty with the logically separable and empirically contingent

conditions of it. 265 Hobbes insisted in this distinction because he knew that this

exposed a potentially serious flaw in the republican argument. Ironically, that Hobbes

was right or at least that his point was taken seriously even by his opponents, it was

confirmed post-mortem by the fact that even later eighteenth-century radicals such as

Richard Price and Joseph Priestley, commonly conceded his distinction by seeing the

relationship between the personal freedom allowed by the law and the right to

participate in making the laws in terms of the latter ensuring the maintenance of the

former. 266 Significantly, the fact that they did so presupposes their acceptance of the

261 See, Ibidem, p.59.262 See, Quentin Skinner, Liberty before liberalism, pp.77-78.263 William Paley, The Principles of moral and political philosophy (London, J. Faulder, 1785), p.447. Significantly, Paley's statements are echoed by at least some of the answers of the "elite" theorists of democracy to their critics in the political science of the 1950s and 60s, for instance, by those following Leo Strauss, who influentially argued in favour of the necessity of moderating our political expectations because human beings will never create a society which is free of contradictions. To their views Skinner replies that that the point of a political theory which shows us what our highest values entail is quite properly to demand the alteration of practices as inconsistent with principle, rather than a redefinition of the principle as too demanding of practice. See: Quentin Skinner, Liberty before liberalism, pp. 78-79.264 See, for instance: A Dialogue, pp.58-59.265 See, Quentin Skinner, Liberty before liberalism, pp.79-81.266 See, for istance: Richard Price, Two Tracts on Civil Liberty, in Richard Price: Political Writings, Edited by D. O. Thomas (Cambridge, Cambridge University Press, 1992), pp. 14-100, pp.22,30,45,79,84; Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty in Joseph Priestley: Political Writings, Edited by Peter N. Miller (Cambridge, Cambridge University Press, 1993), pp. 1-127, pp. 32-33.

40

very distinction which the neo-roman theorists seeked to deny by emphasizing against

Hobbes that liberty is one and that there can be no contingent conditions involved in

it. 267 This means that Hobbes' argument inspite of his rejection of freedom as a jural

condition of persons in his authorization theory, was a powerful one which paved the

way for a very influential way of characterizing the distinction between civil and

political liberty. That is, as a result of Hobbes' argument, whilst civil liberty was

intended as the personal freedom allowed by the laws, political liberty became the

share in the making of laws warranting the former. 268 However, accepting this

principle was highly problematic for a neo-roman theorist, because to assert a means-

end relationship between the two was to have given up the claim that liberty, properly

understood, is a condition which does not allow debate about the utility of any

particular institutional prop - since it already falls within its definition that it requires

a republican government. 269 In other words, to sociologize the relationship between

liberty and the conditions of its exercise is to make as Hobbes did - the former

contingent on the latter, and this is to open up precisely the gap which the neo-romans

sought to foreclose. 270 Only defining freedom so as to preclude the presence of

prerogative power can logically guarantee the absence ofdependency. 271 Significantly,

Sidney related the prerogative power underlying absolute rule as opposed to the

freedom and self-reliance of popular government - to corruption, patronage, and

clientage. 272 This is because, indeed, according to the neo-romans republicans,

Hobbes' definition of freedom which hinges on the absence of specific prohibitions

fails to capture the most insidious un-freedom of all, namely, as Sidney put it: the

servility of those whose actions - albeit uncoerced -attempt to anticipate the will of the

possessor of arbitrary power. 273 Such an objection to Hobbes and more arguably, as

Skinner seeks to emphasize, to the principles underlying liberalism itself, is indeed to

be taken with all the respect that it deserves. 274 But the merit - or depending from

which point of view, the fault of Hobbes' perspective is that it paves the way for the

267 See, Quentin Skinner, Liberty before liberalism, p.77.268 See, Ibidem, pp. 12-13,26,50,80.269 See, Ibidem, p. 17 and ff.270 See, Ibidem, p. 7.271 See, Ibidem, p. 70.272 See, Algernon Sidney, Discourses concerning Government [1698], ed. Thomas G. West (Indianapolis, Hackett, 1990), 11.19, pp. 187-188, 11.25, p. 252.273 See, Ibidem, 111.19, p. 435.274 See, Quentin Skinner, Liberty before liberalism, pp. 115-116.

41

emergence of a rejection for ideological preoccupations with particular institutional

forms as definitive of liberty infavour of consequentialist considerations. 275 This

consequentialist rejection of neo-roman republicanism will be exemplified by the

"scientific whiggery" of Hume arguing that "private property ... is almost as secure in

a civilized EUROPEAN monarchy, as in a republic",276 and that the only realistic

political arrangements were those in which "every man was to be presumed aknave,"

i.e., to be always seeking his own interest. 277

Now drawing the implications of Skinner's argument, the broader context in which to

locate Hobbes in order to understand his role and position in the history of political

thought, is the modem project of constructing societies for individuals seeking their

own self-interest, rather than building popular republics based on Sidney's or

Rousseau's neo-roman theories of liberty. 278 This project was seriously challenged

only, and in historical terms briefly, by the collectivist alternatives of fascism and

communism. 279 That is to say, the fact that the criterion of political right became

consequential, or broadly utilitarian, was at least in part due to the increasing

acknowledgement of the irresistible force of subjective desires as the motivation for

action of self-centered individuals, which is what Hobbes clearly pointed out. 280

Significantly, this tendency is at work even among critics of utilitarianism such as

John Rawls, whose "justice as fairness" is set to decide through an hypothetical social

contract what principles we could agree to on the basis of a desire to further our own

subjective aims and interests, whatever they may be. 281 Indeed, the development of

the modem European state is commonly associated with a long term erosion of the

various codes of ethical restraint on individuals' subjectivity, which paradoxically is a

reverse of how it is often understood the rise and decline of the main European

275 See, Ibidem, pp. 96, 98-99.276 David Hume, "Of Civil Liberty", Essays moral, political and literary, Edited and with a foreword, notes, and glossary by Eugene F. Miller; with an apparatus of variant readings from the 1889 edition by T.H. Green and T.H. Grose; based on the 1777 edition originally published as vol. 1 of essays and treatises on several subjects (Indianapolis, Liberty Fund, 1987), pp. 92-93.277 Ibidem, "Idea of a Perfect Commonwealth", p. 400.278 Cf., Quentin Skinner, Liberty before liberalism, pp.96-97.279 See, for example: Eugene Kamenka, "Totalitarianism", A Companion to Contemporary Political Philosophy, Edited by Robert E. Goodin and Philip Pettit (Oxford, Blackweil Publishers, 1993), pp. 629-637, p. 630.280 See, Iain Hampsher-Monk, A History of Modern Political Thought: major political thinkers from Hobbei Marx (Oxford, Blackweil, 1992), p. 67.281 See, John Rawls, "Justice as Fairness", Contemporary Political Philosophy: An Anthology, pp. 187-202, p. 189

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models of polity, that of Greece and Rome. 282 This points to the gradual acceptance,

and even celebration, of those subjective aspects of individuality which the political

moralities of neo-roman republicanism, common law, as well as Christianity, have for

the most part sought to restrain for the greater good of the community. 283 Hobbes is

part of this process as he establishes subjective indeterminacy with an almost

Nietzsche an reach into all the ultimate grounds of pre-modern political order, i.e.,

that of religion, the past, and even reasonitself. 284 So with "Hobbes as the demon of

modernity" and with Descartes' deductive and mechanistic science, philosophy

abandons the dominant ideology of theologians like Richard Hooker by whom the

Aristotelian view of the world as constituted by "intelligible essences", was

commonly combined with the Christian notion of human nature as the terrestrial

embodiment of divine transcendence. 285 Indeed, Richard Hooker held that: "The rule

of voluntary agents on earth is the sentence that Reason [i.e., the wisdom of God]

giveth concerning the goodness of those things which they are to do." 286 Hobbes

departs from this Aristotelianism because he highlights passions and individual

desires - i.e., as the Lawyer calls them in A Dialogue, "an irregular Appetite to

Riches, to Power, and to sensual Pleasures," as the irreducible elements which lay the

foundations for the autonomy of the human being, and also account for his political

behaviour. 287 Thus, in A Dialogue like in Behemoth, Hobbes' anatomy of disorder

reveals him to be a sophisticated analyst of the passions and interests that percolated

beneath the surface of the English Civil War. 288

However, to say that Hobbes is located in the modem political project of constructing

societies for individuals seeking their own self-interest, it is not to say that his theory

is identical with the concept of "methodological individualism" which later was to

support liberal economic and political doctrines. 289 This individualism stems from

Adam Smith who argued that nature, through the hidden hand of the market,

282 See, Michael Mann, The Sources of Social Power. Vol. 1 A History of Power from the Beginning to A.D. 1760 (Cambridge, Cambridge University Press, 1986), p. 22.283 See, Gerald J. Postema, Bentham and the Common Law Tradition (Oxford, Clarendon Press, 1986), p. 39.284 See, Iain Hampsher-Monk, A History of Modern Political Thought, pp. 15-16, 21-22.285 See: Noel Malcom, "Hobbes and Spinoza", The Cambridge History of Political Thought 1450-1700, pp. 530-557, pp. 532-533,546-547; also, Richard Tuck, Hobbes, p. 100.286 Richard Hooker, Laws of Ecclesiastical Polity, I, VIII, 4, Works, Vol. 1, ed. J. Keble, R. Church and F. Paget, 3 Vols. (Oxford, Clarendon Press, 1888), p. 228.287 A Dialogue, p.57; see also: Leviathan, Part I, chap.6, pp.121-122.288 See, Stephen Holmes, "Political Psychology in Hobbes's Behemoth," in Thomas Hobbes and Political Theory, p.120.

43

automatically converts self-interest into the good of all, so that an individual: "By

pursuing his own interest he frequently promotes that of the society more effectually

than when he really intends to promote it." 290 Hobbes is different not so much because

he would eventually suppress the power and autonomy of individuals by transferring

it completely to the State, thus building a whole which nullifies its own parts, but,

rather, because of his ruthless way of translating human relationships into the

mechanical field of bodies and their combinations -as famously conveyed in

Leviathan's statement: "Will therefore is the last Appetite in Deliberating." 291 So

Hobbes constructs a system of correspondence between "sociological" and

"mechanical" laws in which, contrary to "methological individualism", the same

individuals cannot enter several competing associations, and in which an external

force must always be applied in order to hold together the association that the

individuals themselves have formed preserving it from disaggregating and falling

back into "a warre, as is of every man, against every man", i.e., into an anarchy of

individual motions. 292 This means that Hobbes' world remains constantly haunted by

fear: either the mortal fear which, in a "natural multitude", individuals are mutually

inspiring in themselves, or, after they have escaped it by instituting the State, the

salutary fear that its power inspires in them. 293 That is to say, the individuals

following a rational calculus, actually ask the State to inspire fear in them ail, in order

to escape their "private" antagonism. Hobbes' individualism is thus a limited one, and

so too is his absolutism because as he explains in Leviathan: "The Obligation of

Subjects to the Soveraign, is understood to last as long, and no longer, than the power

lasteth, by which he is able to protect them." 294 To make himself even clearer, Hobbes

significantly reiterates the same idea, few lines later, with these words: "The end of

Obedience is Protection; which, wheresoever a man seeth it, either in his own, or in

anothers sword, Nature applyeth his obedience to it, and his endeavour to maintaine

289 See, for example: Patrick Dunleavy, "The State", A Companion to Contemporary Political Philosophy, pp. 611-621, p. 612.290 Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York, Modem Libra 1937), IV, II, p. 423.291 Leviathan, Part I, chap. 6, p. 128.292 Ibidem, chap. 13, p.185. See also: Iain Hampsher-Monk, A History of Modern Political Thought, pp.20-21.293 See: Leviathan, Part I, chap. 13, p. 188; Part II, chap. 27, p.343.294 Ibidem, Part II, chap.21, p.272.

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it." 295 Hobbes' "limited" individualism and absolutism could have not been put more

clearly than this, indeed!

Hobbes and modern skepticism

However, before examining the specific role of A Dialogue in this theory, I would like

to discuss Richard Tuck's view that Hobbes' subjective individualism and hence his

modernity are partly an avatar of modem sceptical relativism and partly an answer to

it, rather than as argued by Skinner, the result of a reaction to the arguments in

utramque partem of the rhetorical culture of Renaissance humanism. 296 Thus Tuck

locates the development of Hobbes' thought within the general Western European

culture marked by the scepticism of Renaissance humanists like Michelde Montaigne,

Pierre Charron and Justus Lipsius. 297 Indeed, he points out that the young Hobbes was

at home with their raison d'etat culture in which a form of ethical scepticism was

blended with "Stoic" ideas. 298 This blending of seemingly different theories in fact

made perfectly good sense because not unlike the Stoics of ancient Greece which

argued in favour of a total control over passion and desire, i.e., apatheia, the sixteenth

century moral scepticism of the raison d'etat culture of a Guicciardini, Botero, Bodin

and Montaigne, advocated a type of ataraxia supposed to eliminate all those beliefs

originating from passions, which if acted upon would bring individuals into conflict

with each other. 299 In this way, the common assumption of scepticism, stoicism and

raison d'etat was that since it is reasonable to suppose that there is a cognitive element

in most emotions, passions can only be controlled by the control of belief itself and

that this control cannot be left to the individuals alone but that it must be operated

(also) by the state. 300 That is to say, the politic alanalogue of the self-discipline of

passion and belief was a theory according to which individuals had to be disciplined

in the interest of their collective security. 301 In the mid-sixteenth century this political

analogue still fully endorsed Ciceronian humanism, later also a type of sceptical

295 Ibidem.296 See, Richard Tuck, Philosophy and government, 1572-1651, pp.xvii,285-298; cf., Quentin Skinner, Reason and Rhetoric, pp. 9,298-301.297 See, Richard Tuck, Philosophy and government, 1572-1651, p.xiii.298 See Ibidem, p. 282.299 See, Ibidem, p.xiii.300 See, Ibidem, p.5I.301 See, Ibidem, p.xiv.

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realism referring to Tacitus, and in some cases to Machiavelli, known as Tacitism. 302

Tuck argues that during the seventeenth century Grotius, Hobbes and Locke

transformed this raison d'etat culture into theories of natural rights. 303 Tuck also

argues that Hobbes made the most convincing of these transformations because he

saw deeper into the issues of relativism. So he claims that Hobbes by building upon

his sceptical epistemology and relativist ethics with the most remarkable

consequentiality, succeeded in constructing a science of politics based on the principle

of self-preservation. 304

I generally agree with Tuck's views. Nevertheless, I think that taking as points of

reference in understanding Hobbes his reaction both to scepticism and rhetorical

humanism, far from combining two heterogeneous points of view, reconciles two

major features of his political theory which are strictly intertwined. 305 Hence it is in

my view useful to consider Skinner's and Tuck's explanations as complementary. 306

As we have seen, while Hobbes was trained as a rhetorician, later his theory of

knowledge was supposed to overcome epistemological scepticism. 307 It is to counter

this scepticism that Hobbes in The Elements of Law says:

For the understanding of what I mean by the power cognitive, we must

remember and acknowledge that there be in our minds continually certain

images or conceptions of the things without us, insomuch that if a man could

be alive, and all the rest of the world annihilated, he should nevertheless

retain the image thereof, and of all those things which he had before seen and

perceived in it; every man by his own experience knowing that the absence

or destruction of things imaginated, doth not cause the absence or destruction

of the imagination itself. 308

302 See, Ibidem, pp.xii-xiii,46-47.303 See, Ibidem, pp.xiv-xv.304 See, Ibidem, p.xvii.305 I was confirmed in this view after reading: Marilena Saracino, "Hobbes, Shakespeare and the Temptation to Skepticism", in Thomas Hobbes e la Fondazione della Politico Moderna, pp. 530-548, p. 548.306 For the opposite view, i.e., a denial both of the importance of rhetoric and of the influence of epistemological relativism on the development of Hobbes' views, see: Aloysius P. Martinich, Hobbes: a biography, pp. 11,165-169.307 See: Arrigo Pacchi, Convenzione e ipotesi nella formazione della filosofia naturale di Thomas Hobbes (Firenze, La Nuova Italia Editrice, 1965), pp. 62-63; also, Tom Sorell, Hobbes (London, Routledge, 1986), pp. 65-66.308 The Elements of Law Natural and Politic, Part I, chap.I, 8, p.22.

46

As it appears from this passage, Hobbes is finding ways to deal with sceptical doubts

whilst persevering in his quest for knowledge. 309 This is so even though Hobbes does

not meet skepticism about the existence of an external world on its own ground

because his hypothesis does not free him of the belief in the very existence of the

world, but only allows him to assume that objects do not exist outside the mind at the

same time as we have the image of them. 310 Of course, skepticism about the existence

of the material world plainly puts into question the assumption that there once were

external bodies, as much as the assumption that there are copresent bodies satisfying

the content of our current experiences. 311 Hobbes' reaction towards the hyperbolic

doubt reflects the modem and pragmatic scientific outlook which admits that

scepticism, in a fundamental sense, cannot be answered, but that for practical

scientific purposes it could be ignored. 312 This view was shared also by Mersenne and

Gassendi, and was later adopted by the Royal Society in one form, and by the

Enlightenment philosophes in another. 313 But in regard to this, it is important to

remember that Hobbes, as pointed out by Tuck, combines the parallel concerns of

Grotius and Descartes respectively for moral and epistemological relativism. 314

Indeed, this is significant because the combination of these two types of scepticism is

one of the elements which characterizes the development of modem individualism as

the fundamental feature of modernity itself. 315

However, Hobbes also understood the need to reconstitute a dominant political culture

in terms of the relationship between science and rhetoric, and accordingly the appeal

of his project rests upon the promise to provide a (scientific) means for the

authoritative resolution of rhetorical disputes involving evaluation. 316 So in Hobbes'

political theory his concern to overcome scepticism and to transmit knowledge is

reflected by the fact that while his new science of politics was designed to set

standards of scientific truth, certainty and rigour, his arguments were always designed

309 See, Richard H. Popkin, "Scepticism and modernity," in The Rise of modern philosophy: the new and traditional philosophies from Machiavelli to Leibniz, Edited by Tom Sorell (Oxford, Clarendon Press, 1993), pp. 15-32,p.32.310 See, Aloysius P. Martinich, Hobbes: a biography, p. 165.311 See, Richard H. Popkin, "Scepticism and modernity", p.24.312 See, Aloysius P. Martinich, Thomas Hobbes, p.88.313 See, Richard Tuck, Philosophy and government, 1572-1651, pp.293,348.314 See, Ibidem, p.347.315 See, Ibidem, p.348.316 See, David Johnston, "Plato, Hobbes, and the Science of Practical Reasoning," in Thomas Hobbes and Political Theory, pp.37-54, p.50.

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to appeal successfully to a wide range of readers.317 This is true even in the case of

The Elements of Law which was accordingly written in English, in spite of Hobbes'

remark in The Epistle Dedicatory: "whilst I was writing I consulted more with logic,

than with rhetoric." 318 That Hobbes, notwithstanding his changes of mind about

whether or not to make use of rhetorical techniques, was always reacting both to

scepticism and to classical rhetoric is confirmed by the fact that in chapter 13 of The

Elements of Law he points out that the rhetorical doctrine of persuasion cannot point

to us the right direction in order to discover new and certain truths, which is at the

same time an embodiment of sceptical relativism and an indication of a concern to

overcome it. 319 Again long after writing The Elements of Law, Hobbes' rediscovered

use of rhetoric in A Dialogue, testified by the continuous reference to historical

examples, is combined with a looming skeptical relativism and with a concern to

overcome the dangers deriving from it. So the Philosopher declares that "there is not

amongst Men an Universal Reason agreed upon in any Nation," and that "but for the

Law we could not (as saith St. Paul) have known what is sin." 320 But in A Dialogue as

a result of this scepticism Hobbes argues that there is no source independent of the

sovereign on matters of religious judgement and that this is a ground for toleration. 321

This is a view which he consistently held in all of his works, but that in A Dialogue is

expressed more forcefully than ever before to avoid, as I will argue in Chapter II of

the thesis, the risk of being persecuted for heresy. Thus, as Tuck points out, Hobbes

seems to have had more than a little in common politically with John Locke. 322

This similarity is confirmed by Aubrey's suggestion in a letter to Locke of February

1673 that he should meet Hobbes and read his Dialogue of the Common Laws

because: "I have a conceit that if your Lord sawe it he would like it".323 We do not

know whether or not Locke complied with this suggestion and actually met Hobbes

and read A Dialogue. 324 But what we do know is that Hobbes and Locke were in fact

of one mind on toleration up until at least November 1673, when King Charles II

317 See, Iain Hampsher-Monk, A History of Modern Political Thought, p.7.318 The Elements of Law Natural and Politic, The Epistle Dedicatory, p. 19.319 See, Ibidem, Part I, chap.XIII, 2-7, pp.73-74.320 See, A Dialogue, pp. 67-69.321 See Ibidem, pp. 131-132.322 See, Richard Tuck, "Hobbes and Locke on Toleration", in Thomas Hobbes and Political Theory, pp. 153-171, p. 169.323 The Correspondence of John Locke, Vol.1, 8 Vols. Edited by E. S. De Beer (Oxford, The Clarendon Press, 1976), pp. 375-376.324 See, Richard Tuck, "Hobbes and Locke on Toleration", p. 155.

48

bowed to pressure from hard line Anglicans by allowing the Test Act imposing an

exclusively Anglican order to be passed on the fall of the five "Cabal" ministers -

Clifford, Arlington, Buckingam, Ashley Cooper (i.e., Shaftesbury), and Lauderdale,

who came to power after the fall of Clarendon in 1667 and had been supported by

both Hobbes and Locke because they championed the cause that there should be no

further legislation against heretics and religious dissenters. 325 However, Locke later

radicalized his position and distanced himself from Hobbes by refusing to accept

toleration as a concession from the sovereign, thus uncompromisingly endorsing the

modern post-Reformation principle that individuals have a moral sovereignty over the

irreligious beliefs and practice and that this sovereignty cannot be alienated. 326 This

radicalization underpinned his view of religion articulated in A Letter Concerning

Toleration, written during the winter of 1685, while he was in political exile in

Holland, after being forced to flee England in 1683, because his friend and political

patron Lord Ashley had been tried for treason. 327 On this view, God judges people on

the sincerity, not the truth, of their beliefs, and consequently, to professor act contrary

to them is the paramount sin of hypocrisy, which leads to eternal damnation. 328

Moreover, even if coercion were able to induce belief, there is no epistemological

certainty that the religion of any government is the true religion. 329 This is Locke's

own version and answer to the same relativism and subjectivism which Hobbes had at

the same time embodied and grappled within his philosophy. 330

The rest of my thesis will examine the specific role of the rhetorical enterprise of bis

Dialogue of the Common Laws in Hobbes' theory and consequently in the

development of modern individualism. In A Dialogue, in fact, Hobbes seeks to

convince his readers by making use of historical as well as rational arguments, that to

rest law on reason is a recipe for anarchy, because all that there is individual

rationality which is indeterminate. 331 In this way, Hobbes' modem subjectivism

undermines the historical objectivity of common law as the embodiment at the same

325 See, Ibidem, pp. 167-168326 See, James Tully, "Locke", The Cambridge History of Political Thought 1450-1700, pp. 616-656, p. 647.327 See, Ibidem, p. 648.328 See, John Locke, A Letter Concerning Toleration, Edited by James Tully (Indianapolis: Hackett Publishing Company, 1983), pp. 1-25.329 See, Ibidem, pp.26-28.330 See, for instance: Richard Tuck, "Thomas Hobbes: the sceptical state", in Plato to Nato: Studies in Political Thought, Introduced by Brian Redhead (London, BBC Books, 1984), pp.96-107, p.107.331 See, Gerald J. Postema, Bentham and the Common Law Tradition, p. 50

49

time of the "reason" of the past and of Thomistic natural law. 332 However, as Hobbes'

biographical context clearly indicates, this is not the only reason why he decided to

write A Dialogue which must be understood also in view of the specific situation in

the 1660s.

Hobbes' situation in the 1660s is the topic of the second chapter of the thesis, in which

I examine the historical and biographical context of A Dialogue. Then, in the third

chapter, I will make a critical exposition of the content of each section of A Dialogue

in order to evaluate whether Hobbes' juridical arguments succeed in showing that the

English legal system is and ought to be the embodiment of absolute monarchy. I argue

that he does not succeed. The purpose of the fourth chapter is to develop a further

elaboration of the intentions of Hobbes in the light of the previous exegesis of A

Dialogue. In the fifth chapter I examine how Hobbes uses history in A Dialogue. I

relate Hobbes' use of history to the role of examples and confirmation in scientific

theories which are "conditional", and to his rhetorical enterprise. In the sixth chapter I

compare on the one hand how Coke and Hale make use of history and on the other

hand how Hobbes does. Coke appealed to history in order to argue that the Anglo-

Saxon identity derived from an ancient constitution which was the embodiment of an

"objective" reason. Hobbes by raising doubts about the historical existence of this

constitution obliged Hale and the next generation of common lawyers to reconstruct

their arguments on more "conventionalist" basis.

The contrast that emerges between Hobbes' rational jurisprudence in A Dialogue and

common law is significant to the rise of English and American constitutionalism.

Indeed, one of the underpinnings of common law lies in the belief in an ancient

constitution from which derives the Anglo-Saxon national identity. A Dialogue, by

challenging this belief, contributes to its evolution. Hobbes makes the ancient

constitution dependent on the individual reason of the sovereigns so that it loses its

objective status as the embodiment of universal reason as understood by the common

lawyers. Furthermore, A Dialogue's rhetorical enterprise by anticipating some of

Brady's arguments concerning the rediscovery of English feudalism as an argument in

favour of absolute sovereignty succeeds in suggesting that the historical existence of

the ancient constitution as understood by the common lawyers and Parlamentarians, is

not true and only a matter of subjective belief. Hale in his critique to A Dialogue

vindicates common law with more self-conscious historico-philosophical arguments, 332 See, Ibidem, pp. 60-61

50

but which were themselves infected with Hobbesian subjectivism and

conventionalism. These arguments will be recalled not only few years later by Locke,

but also in the following century, and even later, by Hume, Burke, Blackstone and

Bentham. Hobbes directly or indirectly provokes these responses by his own use of

history as rhetoric, which undermines traditionary authority based on an "objective"

notion of reason, and require the common lawyers to rethink, deepen and ultimately

reconstruct on more "conventionalist" basis their arguments in favour of the ancient

constitution, even though their approach remains different from Hobbes'.

In accordance with the structure outlined above, I analyse next what Hobbes' is doing

in writing A Dialogue in view of the general context of his late works and life during

the 1660s. I argue that he is advocating absolute monarchy as the best form of

government.

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52

CHAPTER II

WHAT HOBBES IS DOING IN A DIALOGUE OF THE COMMON LAWS

Prelude

The thought of Hobbes has attracted, especially during this century, the interest of

many scholars wishing to understand the roots of contemporary legal and political

theory. Nevertheless, the attention given to A Dialogue between A Philosopher and A

Student of the Common Laws of England has been limited. This is due to the fact that

at least prima facie, the work does not seem to have the scope and power of argument

of a De Cive or Leviathan, and is more historically contained. In addition to this, there

are two factors which make interpreting A Dialogue more difficult:

(a) The manuscript from which the work was printed is lost;

(b) The work was never finished.

These two factors must be understood also in view of the fact that since some years

before the Restoration, the hands of the aged but still active and very bright Hobbes

shook incontrollably, probably because of Parkinson's disease, and he could no longer

write by himself- not even to sign a letter without trembling.333 So it is likely that

Hobbes dictated A Dialogue, like most of his other late work, to James Wheldon, his

main personal secretary at Hardwick or Chatsworth, the residences of William

Cavendish, the Earl of Devonshire, where he spent most of his late years, or in

London where he lived for a while - most notably in 1666. 334

How to understand what Hobbes is doing in A Dialogue

333 See, Noel Malcolm, "General Introduction" to: Thomas Hobbes; The Correspondence, Edited by Noel Malcom Vol.1 (Oxford, Clarendon Press, 1994), p.xxiii.334 See: Ibidem, pp.xxiv-xxv; Vol.11, pp.687-692; also Richard Tuck, Hobbes (Oxford, Oxford University Press, 1989), pp.4,26,33-35. Hobbes was employed first as a tutor by the Cavendish family in 1608, then he became a loyal household servant of them, and occasionally also of their relatives and neighbours; he acted as a secretary, tutor, financial agent, general adviser, sharing their royalist political positions and living under their generous patronage for the rest of his life.

53

In order to help our comprehension of A Dialogue it is necessary to consider both the

historical and the biographical context of the work, i.e. Hobbes' situation in the 1660s.

At first, the Restoration seemed to be excellent news for Hobbes. Nevertheless, this is

only superficially true. Hobbes was indeed a royalist, and on friendly terms with the

Stuart family. Some fifteen years before, the new King had been his student of

mathematics. At the end of 1651, the King had received a presentation copy of

Leviathan containing some textual variants which can be seen in Richard Tuck's

recent edition of this work. 335 So, a few days after his return to England, Charles II

invited Hobbes to the Royal palace, offered him a substantial yearly pension (which

was nevertheless irregularly paid), and granted him free access to his Majesty. 336 Yet

the confused new political establishment was somehow at odds with Hobbes'

absolutist conception of sovereigny. The Lord Chancellor, Edward Hyde, Count of

Clarendon, supported a compromise between the Crownand the Parliament. He

disagreed with the ideas of Leviathan. 337 Clarendon did not only object to the fact that

according to Hobbes all power should be vested in the sovereign as opposed to

Parliament; as Richard Tuck points out, his main objection was to Hobbes' theological

positions which were designed to fit in with his materialist philosophy, and which

were not acceptable to most royalists. 338 Indeed, the same distaste for Hobbes'

theological positions was shared by many influential Anglican bishops such as Gilbert

Sheldon and John Bramhall. 339 So Clarendon and the bishops played their part in

preventing Hobbesian political views from becoming too popular among the closest

associates of Charles II. 340 Moreover, the numbers of Hobbes' enemies soon

increased. 341 It looked as though the protection of the king was not enough to avoid

trouble. Many people, especially among the clergy, accused Hobbes of being an

atheist. 342 The whole situation seemed quite dangerous. After 1665, the internal

turmoil caused by a particularly bad economic period led to new restrictions against

335 See, Richard Tuck, "Introduction" to Leviathan, in Thomas Hobbes, Leviathan, Edited by Richard Tuck(Cambridge, University Press, 1991), p.xxiv; see also: "A note on the text", pp.xxxii-xxxvii.336 See, George Croom Robertson, Hobbes (London, William Blackwood and Sons, 1886), p. 189.337 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge, Cambridge University Press, 1987), Part One, chap. VII, pp. 148-149.338 See, Richard Tuck, Hobbes, p.29.339 See, Ibidem, pp.30,33.340 See, John Bowie, Hobbes And his Critics, A Study in Seventeenth Century Constitutionalism (Oxford, Aid Press, 1951),p. 161.341 Concerning the way the people understood the ideas of Hobbes, see: Mark Goldie, "The reception of Hobbes", The Cambridge History of Political Thought 1450-1700, ed. J. Burns and Mark Goldie (Cambridge, Cambridge University Press, 1991), pp.589-615.

54

freedom of expression. In fact, most people regarded the publication of free ideas as

sowing the seeds of disorder. Furthermore, the whole country appeared to be under

the influence of superstitious fear. It was common to blame impious opinions for the

difficulties that were occurring. 343 The religious context was characterized by the

revival of the Anglican hegemony and by the imposition of the Clarendon code. 344

Hobbes had to avoid the danger of being accused of heresy. So he destroyed the most

controversial parts of Leviathan, and altered its conclusions with three short

dialogues. 345 With these writings, as in the Historical Narration Concerning Heresy

belonging to the same period, Hobbes stated that only the king is competent to initiate

prosecutionin cases of offence against religion. Supposedly, this strengthens the

intellectual position adopted in Leviathan. However, the urgency derived from

Hobbes' own personal situation, i.e. from the necessity of defending his life. 346 At any

rate, shortly afterwards, Parliament obliged the sovereign to ban the publication of all

the books written by Hobbes that concerned moral issues and politics. 347 During 1668,

in spite of the sympathy of Charles II, Hobbes was able to publish a complete edition

of his Latin Works only in Amsterdam. 348 Nevertheless, between 1666 and 1668, he

still wrote Behemoth - the history and historical explanation of the recent English civil

wars according to Hobbes' science of politics, which takes the form of four dialogues

and was published in 1679, and A Dialogue published in 1681. 349 According to Joseph

Cropsey, A Dialogue dates to 1666. 350 This was in fact a most dangerous moment for

342 See, Samuel I. Mintz, The Hunting of Leviathan (Cambridge, Cambridge University Press, 1962), pp.vii,27,28,72,80.343 See, George Croom Robertson, Hobbes, p. 193.344 On this topic, see: Tim Harris, "Introduction: Revising the Restoration", The Politics of Religion in Restoration England, edited by Tim Harris, Paul Seaward and Mark Goldie (Oxford, Blackwell, 1990), p. 10 .345 See, George Croom Robertson, Hobbes, p. 197.346 See, Richard Tuck, Hobbes, p.34.347 See, George Croom Robertson, Hobbes, p. 196.348 See, Ibidem.349 In London, during 1679 and 1680, unknown publishers more than once printed spurious editions of Behemoth; the first edition published by Hobbes' official editor, William Crook, came out in London, at the Green Dragon,in 1682. See: Charles Hinnant, Thomas Hobbes, a reference guide (Boston Mass., G..K. Hall and Co., 1980), pp.xviii,2,4,7,68. However, only in 1889 did Ferdinand Toennies publish the original manuscript of Behemoth,with Hobbes' own hand corrections. The German scholar discovered this writing in St. John College, Oxford. See: F. Toennies, Preface to Thomas Hobbes , Behemoth Or The Long Parliament, London, Simpkin andMarshall and Co., 1889. Reprint with a new Introduction by M.M. Goldsmith (London, Frank Cass and Co.,1969), pp.vii-ix.350 Also Richard Tuck thinks that A Dialogue was probably written in 1666. However, Susan Mo Her Okin in one article concerning A Dialogue, argues that probably this writing dates - at least in part - from a period after the completion of Behemoth in 1668. She adduces as evidence Aubrey's letter to a friend, written in 1672 or 1673, in which he considers as current news the realization of Hobbes'

55

Hobbes: during the same year, Leviathan, together with Of the Middle State of Souls,

written by Thomas White, a Catholic priest in good relation with Hobbes, were under

investigation before the House of Commons as blasphemous writings, apparently for

their common denial of a natural immortality of the soul. 351 Thomas White was also

the author of Grounds of Obedience and Government, a book which at the time of the

Protectorate argued even more boldly than Leviathan in favour of maintaining the

actual government. 352 Luckily for Hobbes the House of Lords did not support the

motion against Leviathan and Of the Middle State of Souls. 353 However, Hobbes for a

while was at risk of possible imprisonment: this explains why A Dialogue had to be a

cautious vindication of Leviathan, couched in legal and historical terms, and should

help us to understand the special concern of this work with proving that the English

courts no longer had jurisdiction over heresy. 354

However, it is not only because of this context that there is enough evidence to prove

that A Dialogue was one of Hobbes' works. In fact, various letters and witnesses of

the time confirm this, while at the same time giving us some important clues for

understanding the philosophical features of A Dialogue. To our knowledge, the most

famous person to have read an imprinted copy of A Dialogue was Sir Matthew Hale,

who wrote a confutation of it - at the time also imprinted – while Hobbes was still

alive. A Dialogue was also read by John Aubrey. This appears from a passage which

occurs in Aubrey's life of Hobbes. Therein Aubrey tells us that he gave a copy of The

Elements of the Common Laws of England written by Bacon to Hobbes in order to

convince him to write a work on English law, and he dates the incident 1664. Aubrey

writes:

treatise about law; John Aubrey says: "[Hobbes]haz writt a treatise concerning Lawe, which 8 or 9 years since I much importuned him to doe." Philip Milton in arecent article agrees with Susan Moller Okin, and suggests that those parts of A Dialogue which dealt with heresy were written probably not long after the middle of 1668. See: Richard Tuck, Hobbes, p.34; Susan Moller Okin,"The sovereign And His Counsellours - Hobbes's Reevaluation of Parliament", Political Theory, 10, No.l(February 1982), pp.49-75, pp.72-73; A. Clarke ed., "Brief Lives", Chiefly of Contemporaries, set down by John Aubrey, Vol.1 (Oxford, Clarendon Press, 1898), p.394; Philip Milton, "Hobbes, Heresy and Lord Arlington: History of Political Thought, Vol.XIV, no.4 (Winter 1993), pp.501-546, pp.509,518,543-544.351 The English version of Of the Middle State of Souls which debated the immortality of the soul, came out in 1659, the original Latin text was written in 1652. See: George Croom Robertson, Hobbes, pp. 193-194.352 See, Norberto Bobbio, Thomas Hobbes (Torino, Giulio Einaudi, 1989), pp.107-108.353 See, George Croom Robertson, Hobbes, p. 194.354 Ses, Ibidem, p.195.

56

I then presented him the Lord Chancellor Bacon's Elements of the Lawe (a

thin quarto) in order thereunto and to drawe him on; which he pleased to

accept, and perused; and the next time I came to him he showed me therein

two cleare Paralogismes in the 2nd page (one, I well remember, was in page

2) which I am heartily sorry are now out of my remembrance. I desponded,

for his reasons, that he should make any further attempt towards this

Designe; but afterwards, it seemes, in the Countrey he writt his Treatise De

Legibus. He drives on, in this, the King's Prerogative high. 355

This reference gives us some important clues for understanding the philosophical

features of A Dialogue. Hobbes had read and criticized Bacon, even though they both

argue in favour of the subordination of the judicial system to the authority of the

sovereign. Joseph Cropsey considers the inspiration given to the ageing philosopher

by the long dead Bacon as evidence for his claim that A Dialogue is more moderate

than Leviathan. 356 But, as he himself admits, the perspective in which Cropsey sees A

Dialogue is affected by a sense of Hobbes' great importance as an avatar of liberalism.

Cropsey knows that the perception of Hobbes in this light is not likely ever to become

the ruling notion. However, as Cropsey kindly explains in a letter sent to me, once he

realized that Hobbes' doctrine of preservation included, if it did not in fact rest upon, a

tenet of inalienable natural right, his mind was prepared to attach particular

importance to what he sees, or wants to see by forcing the text a bit, as the Bacon

inspired prominence of the King-in-Parliament in A Dialogue. Significantly, he

continues his letter by wishing that there were some way of determining beyond doubt

what went on in Hobbes' mind that caused him to abstain from publishing A Dialogue.

Then he says that he would like to leave open the possibility that Hobbes' reason was

not a reluctance to repeat himself in print, but rather a reflection on the consequences

of a turn toward representative government. Most starkly put, Cropsey's opinion is

that Hobbes might have been reticent about disclosing that it is the people's delegates

and not the common law judiciary who should be the closest to the sovereign in

making law. 355 Oliver Lawson-Dick ed., "The Life And Times Of John Aubrey", Aubrey's Brief Lives (London, Mandarin, Paperback, 1992), p.xlviii; see also: A. Clarke ed., "Brief Lives," p.341; Susan Moller Okin, "The Soveraign And His Counsellours - Hobbes's Reevaluation of Parliament", pp.49,72,73.356 See, Joseph Cropsey, Introduction to: A Dialogue between A Philosopher and A Student of the Common Laws of England, Edited and with an Introduction by Joseph Cropsey (Chicago, The University of Chicago Press, 1971), 168 pp., pp.1-48, pp.12-15.

57

However, in spite of my sympathy for this inspiring hypothesis, and admiration for

Cropsey's valuable scholarly work, I have a different perspective illuminated by the

consistency or continuity of Hobbes' thought on sovereignty and deductive method. 357

Indeed, there are important differences between Hobbes and Bacon. Bacon unlike

Hobbes, supported a constitutional balance according to "the customary law of the

land" in which the monarch holds the sovereignty as King-in-Parliament. Hobbes

does not mean the same by the term "history" as Bacon does. Even though the

meaning of the word "history" changes according to the context in which they uses it,

Bacon always values historical knowledge more than Hobbes, and is not at odds with

"the common law mind".358 So he states that "Knowledges are as pyramides whereof

history is the basis".359 It is true that for Bacon in Natural Philosophy a "history" (i.e.,

the method of natural and experimental history) need not carry in a narrow sense the

temporal connotations of the past as a sequence of events (nor need the immemorial

custom of common law) - neither need carry the recording of tradition as an

imperative- and is a gathering of facts: an early point in his method of inquiry (hence

the pyramid metaphor).However, Bacon in fact always follows an historical method

as it is shown by the fact that he significantly states that: "no course of invention can

be satisfactory unless it be carried on in writing. But when this is brought into use,

and experience has been taught to read and write, better things may be hoped".360 This

is because natural and experimental history is to be taken for experience itself: "For I

consider history and experience to be the same thing, as also philosophy and the

sciences".361 Of course, Hobbes always rejected this experimental method. And

consistently with this rejection, A Dialogue effectively criticizes the historical method

on which the "common law mind", and the arguments in favour of the constitutional

balance are based. For this reason, I argue - contrary to Cropsey's claim - that Hobbes

is doing something different from Bacon. Indeed in regard to this, according to

Quentin Skinner's methodological prescription, in order to understand the

357 Incidentally, a perspective which Cropsey himself in his letter graciously considers as plausible as his, and very warmly encourages me to put before the scholarly community in order to direct more attention to a work of Hobbes that deserves respect.358 Concerning the general characteristics of "the common law mind" in England, see: J.G.A. Pocock, The Ancient Constitution and the Feudal Law, Part One, chaps.II-III.359 Francis Bacon, Of the proficiency and advancement of Learning, 1605, Introduced by Jeffrey Stem (Bristol Thoemmes Press, 1994), p.356.360 Francis Bacon, Novum organum, I, Works, Vol.IV, Edited by James Spedding, Robert Leslie Ellis, and Douglas Denon Heath, 14 Vols., (A) Vols. I-VII (London, Longmans, 1857-1861), p.96.361 Ibidem, p.293.

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philosophical context of A Dialogue it is necessary not only to explain what Hobbes

writes, but also what he is doing in writing what he writes. 362 By following this

prescription, I will next indicate what Hobbes is doing.

A Dialogue argues that the rationality of law does not depend on the time-honoured

wisdom embodied by the authority of the common law as the common custom of the

country which embodied the generally established practices as legally valid, but on

the private "reason" of the English sovereigns. In pursuing this claim A Dialogue

establishes a rational jurisprudence on the model of Hobbesian science, which is the

knowledge of causation, and congruent with Hobbes' political science in Leviathan.

According to Hobbes, the empirical knowledge of history can only give confirmatory

or disconfirmatory instances to science, but cannot be the basis of a scientific politics

and jurisprudence. In fact, jurisprudence, i.e. the theory of civil laws, is at the heart

and the culmination of Hobbes' "science of politics". Those parts of politics which are

independent of jurisprudence, e.g. the theory of natural law, which Hobbes calls

"Moral Philosophy" or "Moral Science", precede the establishment of sovereignty; 363

they only enter at the point where jurisprudence is at risk of failing in its task of

maintaining civil society. In A Dialogue Hobbes does the following things:

(a) He criticizes the common lawyers for grounding their conception of law on

historical knowledge;

(b) He tries to find empirical confirmation in history for his rationally constructed

jurisprudence;

(c) He pursues a rhetorical enterprise aimed at persuading the English readers who

regarded the past as authoritative to listen to the "truths" of his political science. That

is to say, Hobbes wants to convince his readers that common law and history really

agree a exemplify the conclusions of his "science of politics”, which advocate

absolute sovereignty.

362 See, Quentin Skinner, Reason and rhetoric in the philosophy of Hobbes (Cambridge, Cambridge University Press, 1996), pp.6-7.363 See, Leviathan (Harmondsworth, Penguin Books, 1968), Part I, chap. 15, pp 215-216.

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Hobbes' intentions in A Dialogue are very complex, involving several different

factors. His main intention is to advocate political absolutism. He wants to do this for

two reasons. The first reason is to vindicate Leviathan's political position. The second

reason is to defend himself against his enemies who wanted to have him convicted for

heresy, even though the threat against his life was remote. 364 If Charles II were an

absolute sovereign, Hobbes' enemies would not have been able to prosecute him

without his agreement, because in an absolute monarchy all the courts belong to the

king, and "the Punishing of Offences can be determined by none but the King".365

Hobbes could count on Charles's favour, and even if he fell out of favour with the

sovereign, a conviction for heresy was unlikely without the imposition by the clergy

of a kind of hard line Anglican orthodoxy which would have ultimately undermined

the authority of the King himself, who was certainly not known to be particularly

devout to the cause of Anglicanism (in fact, he himself was a Roman Catholic). 366

This same purpose of vindicating absolute sovereignty explains A Dialogue's attack

against Coke. Hobbes clearly considers Coke's Institutes of the Laws of England to be

contrary to Leviathan's theory of absolute sovereignty. He answered his ideological

opponent by using a dialogistic method that proved the inalienability of the king's

absolute power notwithstanding its being questioned by a jurist. Accordingly, A

Dialogue has two characters: one is the Philosopher who expresses Hobbes' views,

according to Cropsey, occasionally mixed - but without any acknowledgement - with

Bacon's ideas; 367 the other represents a Lawyer, i.e. a student, meaning someone who

studies but already has learning in the law, who at first advocates Coke's positions,

but who eventually, after discussing each topic with his counterpart, almost invariably

ends up being convinced by the intellectual strength of the Hobbesian argument.

Indeed, as pointed out by James Stoner, the most intriguing aspect of A Dialogue is

precisely this dialogistic method. 368 On the one hand, Hobbes describes science as

demonstrative, and as Michael Oakeshott indicates when describing Hobbes' earlier

364 See White Kennet, A Sermon Preach'd at the Funeral of the Right Noble William Duke of Devonshire... with some Memoirs of the Family of Cavendish (London, by W.B., for John Churchill, 1708), pp. 109-111,113.365 See, A Dialogue, p. 131.366 See, James Tully, "Locke", The Cambridge History of Political Thought 1450-1700, pp.616-656, pp.645-647.367 See, Joseph Cropsey, Introduction to A Dialogue, p. 14.368 See, James R. Stoner Jr., Common Law and Liberal Theory: Coke, Hobbes, and the origins of American constitutionalism (Lawrence Kansas, University Press of Kansas, 1992), p. 116.

60

works, the literary form proper to demonstrative science is the treatise; 369 on the other

hand, he never explains why he chooses to write his late works as dialogues.

Commentators have often pointed out that these works lack Platonicdrama. 370 Perhaps

that is because, although written to persuade the readers to listen to the truths of

Hobbes' science, they do not answer to a Platonic purpose. In fact, the aim of A

Dialogue does not appear to be dialectical, as it would have been had the characters

been discovering a path toward wisdom through conversation. Rather, put it in a

Straussian fashion, Hobbes seems to have a case to make which is to some extent

clouded because the nature of the subject makes clarity difficult in principle and

dangerous in practice. 371 Because what Hobbes writes in A Dialogue and in Behemoth

-the other dialogue written approximately during the same period, concerns English

politics in his time and include arguments only partially mediated by abstract

scientific categories, there is reason to suspect that the choice of form reflects the

peculiar practical complications of the matter.

To a lawyer of Hobbes' time, however, the most noticeable aspect of A Dialogue

would be the obvious similarity in form with the frequently cited work written a

century and a half before by Christopher St. Germain, Dialogues between a Doctor of

Divinity and a student in the Laws of England. 372 This work was certainly known to

Hobbes, who quotes it. 373 Both Doctor and Student and A Dialogue involve a lawyer

in discussion with a learned layman, and aim at a theoretical account of English law

showing that it is based on reason and the law of nature. 374 As pointed out by William

Holdsworth, the thrust of Doctor and Student was the importation into English equity

369 See, Michael Oakeshott, Hobbes on Civil Association (Berkeley and Los Angeles, University of California Press 1975), p.14.370 See, for instance: J.H. Hexter, "Thomas Hobbes and the Law", Cornell Law Review, 65 (1980), pp.471-490, pp.472-473.371 See, for instance: Leo Strauss, The Political Philosophy of Hobbes: Its Basis and Its Genesis, Translated from the German Manuscript by Elsa M. Sinclair (Oxford, The Clarendon Press, 1935), p. 153.372 See, Christopher Saint Germain, The Doctor and Student, or Dialogues between a Doctor of Divinity and a Student in the Laws of England, Edited by William Muchall (Cincinnati, Robert Clarke and Co., 1874). The first dialogue of Doctor and Student appeared in Latin in 1523; two versions appeared in English in 1531 and 1531-1532. The second dialogue (in English) was first published in 1530; a second version appeared in 1532. The English versions of the first dialogue were not direct translations of the Latin. Subsequent versions of the dialogues contained additions. Doctor and Student was a standard work on English law, frequently republished in the sixteenth and seventeenth centuries; there were editions in 1638, 1660, 1668, and 1673, as well as an abridged edition in 1658. See: Robinson A. Grover, "The legal origins of Thomas Hobbes Doctrine of contract", Journal of the History of Philosophy 18 (1980), pp. 177-194.373 See A Dialogue, p.86.374 See, Robinson A. Grover, "The legal origins of Thomas Hobbes Doctrine of contract", p. 180.

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jurisprudence of canonist principles of equity, but this must have been achieved with

great tact, since the anticanonist Coke quotes this work regularly as an authority. 375

St. Germain following the ideas of Marsilius of Padua, is concerned with defending

the English legal jurisdiction against the claims of Rome. This is not too different

from Hobbes, who argues radically in favour of the supremacy of the sovereign in

both civil and ecclesiastical matters. However, as pointed out by Goldsmith, A

Dialogue's Philosopher, replaces St. Germain's Doctor of Divinity, just as Hobbes'

philosophy replaces scholastic thought and Hobbes' law of nature that of Gerson and

Aquinas. 376 While St. Germain begins with a chapter on the eternal law and then

moves to the law of reason, Hobbes begins immediately with a section entitled "Of

the law of reason." 377 St. Germain allows the doctor to establish a general, Thomistic

classification of four types of law: (a) eternal law - God's law for the created world

embodied in it; (b) natural law - the rational creature's participation in the eternal law,

available through the use of reason; (c) human law - mainly the positive law of

particular states; (d) divine law - the revealed law guiding humans to eternal felicity.

Then, St. Germain makes the doctor ask the student for details about the human or

positive law of England, though the student also has something to say about the law of

reason in English law. 378 Generally speaking, the characters of Doctor and Student

take turns questioning each other, as each is ignorant of law as understood and taught

in the other's field. 379 Unlike his counterpart the Doctor, Hobbes' Philosopher seems

in control of the conversation and its course, rarely yielding to an objection from the

Lawyer and nearly comprehensive in his knowledge. In this way, obviously, the

impartiality in A Dialogue, more than in Doctor and Student, can only be apparent,

and the argument must develop within a well predisposed plan. In other words,

Hobbes here is more explicitly and self-consciously rhetorical than St. Germain. This

shows a capacity deriving from the knowledge of the ancient classics, to manipulate

both the argument and the readers by making use of historical examples from ancient

England, as well as from Athens and Rome, in order to convince them of the necessity

of adhering to the sovereign against those who try to undermine his authority by

375 See, Sir William Holdsworth, A History of English Law, 16 Vols. (London, Methuen and Co., 1922-196 Vol.V, pp.267-268.376 See, Maurice M. Goldsmith, "Hobbes on law", The Cambridge Companion to Hobbes, edited by Tom Sorell (Cambridge, Cambridge University Press, 1996) pp.274-304, p.289.377 Cf. : Christopher Saint Germain, The Doctor and Student, chaps. 1-2; A Dialogue, pp. 53-57.378 See, Christopher Saint Germain, The Doctor and Student, chaps. 1 -4.379 See, Ibidem, chaps. 1-20.

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reference to custom. However, one may wonder whether Hobbes' rhetorical tactic is

really effective given the fact that counter-examples to the ones he gives may always

come to mind to the readers.

However, there seems to be a tension between this attempt to persuade the readers

with historical examples and Hobbes' evident renunciation of rhetoric and history in

favour of deductive philosophy. Hobbes in Leviathan had already resolved within his

own philosophical system this tension that is potentially very damaging to the logic of

his case. He resolved this tension by recourse to the role of the "art" of "Eloquence", a

role which is heightened in A Dialogue. For Hobbes, "art" is making and controlling

something. 380 So for example, "Nature" is, "the Art whereby God hath made and

governes the World", and likewise, "by Art is created [and governed by man

himself]... a Common-wealth,... which is but an Artificial Man".381 As Quentin

Skinner points out, in Leviathan Hobbes held the view that while there can be no

place for rhetorical display in natural philosophy, moral philosophy on which his

science of politics and jurisprudence is based, requires "the Art of Eloquence" to be

grasped and to be maintained by those who do not discover the "truths" but need to

have the "truths" taught to them. 382

So also Reason, and Eloquence, (though not perhaps in the Natural Sciences,

yet in the Morall) may stand very well together. For wheresoever there is

place for adorning and preferring of Errour, there is much more place for

adorning and preferring of truth, if they have it to adorn. 383

But the "truths" of science must be gained by deduction, and always serve a practical

purpose, i.e. they are a means to achieve an "end", which is the benefit of mankind,

the goal of his science of politics. Hobbes in A Dialogue confirms this position while

at the same time heightening the role of the "art" of rhetoric in order to convince the

people to be instructed by his jurisprudence. In this way, he is not breaking the unity

of his philosophical system.

However, Hobbes never published A Dialogue. In spite of the fact that there was a

large Anglican offensive to rehabilitate passive non-resistance at the time of the

Restoration, and in support of the widely imposed "Non-Resistance oath", according

to which "it is not lawful, upon any pretence whatsoever, to take arms against the 380 See, Leviathan, The Introduction, p.81.381 Ibidem.382 See: Quentin Skinner, Reason and rhetoric, pp.3 54-3 56; also Leviathan, Part I, chap. 10, p. 151.383 Ibidem, Review and Conclusion, p.718.

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king", A Dialogue runs into several problems. 384 Hobbes sought to obtain the approval

of the royalists, and yet he realized that, no matter how successful his rhetorical

enterprise, i.e. how congenial to the historical predisposition of the readers his attempt

to use the feudal law argument and the Norman conquest in order to advocate royal

absolutism, his position could not really win their endorsement. As A Dialogue

advocates Leviathan's contractual theory and secularism, it looked subversive to most

conservatives. In fact, the Tories considered the divine right of the king to rule the

country as the foundation of sovereign power. Furthermore, the Philosopher's

consideration of royal will as superior to case law was unacceptable to the common

lawyers. This shows that Hobbes was not very clever from a statesman point of view,

if his aim in writing the work was (partly) self-preservation. All this, together with the

censorship banning the publication of Hobbes' philosophical works, reluctantly

imposed by Charles II in 1666 because Leviathan was under investigation before the

House of Commons as blasphemous, explains the peculiar way in which A Dialogue

became generally available: in 1681, William Crooke, Hobbes' official publisher,

published the work in London without Hobbes' authorization. 385 This was more than a

year after Hobbes died at the age of ninety-one. 386 Indeed, in his last letter to John

Aubrey included in The Correspondence recently published by Noel Malcom, Hobbes

stated:

The treatise De Legibus [i.e. A Dialogue], at the end of it, is imperfect. I

desire Mr. Home [Robert Home was a well known London bookseller] to

pardon me that I consent not to his motion, nor shall Mr. Crooke himselfe get

my consent to print it. 387

384 See, Lois G. Schwoerer, "The right to resist", Political discourse in early modern Britain, ed. Nicholas Phillipson and Quentin Skinner (Cambridge, Cambridge University Press, 1993), pp.232-252, pp.234-235.385 The Art of Rhetoric, with a Discourse of the Laws of England, by Thomas Hobbes of Malmesbury (London, Printed for William Crooke at the Green Dragon without Temple Bar, 1681), 208 pp. [The Art of Rhetoric, which William Crooke wrongly attributed to Hobbes, actually was a reprint of an adaptation into English of Talaeus' Rhetorica, made by Dudley Fenner. ] See: Walter J. Ong, "Hobbes and Talon's Ramist Rhetoric in English", Transactions of the Cambridge [England] Bibliographical Society 1 pt.3 1951, pp.260-269.386 The king revoked the censorship only shortly before Hobbes' death.387 Hobbes to John Aubrey, from Chatsworth, The Correspondence of Thomas Hobbes, Edited by Noel Malcolm,VoI.I:1622-1659, Vol.11:1660-1679 (Oxford, Clarendon Press, 1994), Vol.II, pp.772-773, letter 208, dated 18[/28] August [the Julian calendar or Old Style, used in England in the seventeenth century, was ten days behind the Gregorian Calendar or New Style, used on the Continent] 1679; see also: Philip Milton, "Hobbes, Heresy and Lord Arlington", p.544.

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A Dialogue firstly printed - and probably edited in a very imperfect manner - by

Crooke, became part of The Moral and Political Works of Thomas Hobbes, published

in 1750. 388 This was the first serious attempt to edit the work, made by John

Campbell. 389 Then, in 1839 Molesworth re-edited A Dialogue making a few minor

changes, after having compared the two previous editions of 1681 and 1750. He

included it in volume VI of The English Works of Thomas Hobbes. 390 Molesworth

corrected many mistakes in the legal quotations, but other errors remained unspotted. 391 Two publications in Italy refer to this edition. The first is a translation with some

comment of A Dialogue made by Norberto Bobbio in 1959. 392 The second, published

one year afterwards, simply reprints the English text reported by John Campbell; it

also includes a short introduction in Italian by Tullio Ascarelli. 393 The latest edition of

A Dialogue, and the only critical one, was published in 1971. Joseph Cropsey, of the

University of Chicago, corrects some imperfections present in the Molesworth

transcription. He also makes a comprehensive study of this writing, often unduly

neglected by Hobbes' scholars, as it is shown by the limited number of editions.

Presentation of Hobbes' argument in A Dialogue: Philosophical reasoning and

history

A Dialogue, in spite of its being an unfinished work, is of crucial relevance to the

philosophical enterprise of which Leviathan was the most accomplished result.

Hobbes was trying to put rhetoric in the service of his science by employing what can

be called by using a classic Skinnerian expression, his own speech act "move".394 The

388 A Dialogue Between a Philosopher and a Student, Of The Common Laws of England, The Moral And Political Works Of Thomas Hobbes, Anon. Editor [John Campbell] (London, 1750), pp.5 89-651.389 John Campbell was one of the associates of the young King George III, he later became the chief propagandist for George's favourite, the Earl of Bute. He belonged to a relatively small group of people who sought to be “above party" between Whigs and Tories. These people read Hobbes with open enthusiasm. See: Richard Tuck, Hobbes, pp.94-95.390 A Dialogue Of The Common Law, The English Works of Thomas Hobbes Of Malmesbury Now First Collected And Edited By Sir William Molesworth, 11 Vols., London, Bart, John Bonn, Henrieta Street, Covent Garden, 1839-45 (Modem facsimile reprint: Aalen, Scientia, 1962), Vol.VI, pp.1-160.391 William Molesworth was an MP and follower of the leading Utilitarian politicians of his day, George Grote and James and John Stuart Mill. These Utilitarian admirers of Hobbes generated the first serious nineteenth century studies of his thought. See: Richard Tuck, Hobbes, pp.97-98.392 Thomas Hobbes, Opere Politiche, a cura di Norberto Bobbio, Vol.1 (Torino, Utet, 1959), pp.384 -558.393 Tullio Ascarelli, Th. Hobbes e G.W. Leibniz (Milano, Giuffre, 1960), pp.73-195.394 See, Quentin Skinner, Reason and rhetoric, p.8.

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rhetorical argument of Hobbes in A Dialogue made use of royal feudalism, seen as the

historical foundation of absolute monarchy, more explicitly than in his previous

writings. This was an attempt to connect Leviathan's position with English history and

traditions and render it consistent with them. In doing this Hobbes appeals to the

sentiments and beliefs rather than to the reason of his audience, a method advocated

by Aristotle. 395 So in A Dialogue Hobbes' statements about royal feudalism are not

supposed to be understood only by their own meaning, but are also "moves" in his

argument against Coke and the "common law mind". The problems posed by the

tactic can be understood in view of the findings of Quentin Skinner's new work

showing that Hobbes, having rejected "rhetoric" in favour of "science" in The

Elements of Law and in De Cive, reversed his position in Leviathan which re-admits

rhetorical techniques. 396 This change of position is confirmed by the use of rhetorical

arguments in A Dialogue. However, the tactic poses problems, for Hobbes'

philosophy renders any appeal to history, other than as corroborative evidence for

conclusions reached independently by deductive reasoning, contrary to his scientific

method. As pointed out by Quentin Skinner, the one feature that remains constant in

Leviathan and in A Dialogue, as well in the previous works of Hobbes, is his criticism

of any theory of politics and jurisprudence which, instead of proceeding deductively

from true "Definitions", depends on the authority of the past, as reported by writers

such as Coke. 397 This criticism of the authoritative role of history in scientific

reasonings is consistent with the changing position of rhetoric, but always clear in

distinguishing between on the one hand "science" which teaches and demonstrates

indubitable truths and on the other hand "rhetoric" which is a means of persuasion

leading to opinions in utramque partem, i.e. on either side of any question, and which

can be used by those interested not in truth, but only in winning arguments. 398 I next

analyse this apparent tension between Hobbes' deductive method and his rhetorical

appeal to English history in A Dialogue.

The Philosopher in A Dialogue tries to vindicate Hobbes' theory in two ways at the

same time; one makes use mainly of philosophical reasoning, the other of history. His

395 On Aristotle's use of history see for example: Aristotle On Rhetoric: A Theory of Civic Discourse. Newly translated, with Introduction, Notes and Appendices by George A. Kennedy (Oxford, Oxford University Press, 1991), 1394a, p.181.396 See, Quentin Skinner, Reason and rhetoric, pp.3-5.397 See, Ibidem, p.334; see also: Leviathan (Harmondsworth, Penguin Books, 1968), Part I, chap.7, pp. 130-134.398 See, Quentin Skinner, Reason and rhetoric, for example: pp.9,257,336.

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first method involves adopting a mainly rationalistic criterion in the study of law

which becomes a critique of a number of English laws. Because he is convincingly

criticizing the existing laws Hobbes develops a critical jurisprudence whilst claiming

that it is a descriptive one. The second method is to apply the assumed rational

premises to the interpretation of the juridical structure existing in the past. However,

the rational and the historical appeals are commonly opposed by Hobbes. According

to Cropsey, this appeal to history suggests a distinction from the position in

Leviathan. 399 But the fact that A Dialogue combines philosophical reasoning and

history in its juridical arguments does not involve any fundamental change in Hobbes'

legal and political principles. In fact, this method is only chosen by the Philosopher in

order to confute Coke's constitutional principles. Given the English preoccupation

with the past looming large in the widely held belief that the more ancient was the

more authoritative, exemplified by the fact that in seventeenth-century debates

royalists and Parliamentarians alike agreed that identifying immemorial law was the

key to resolving conflict, and ultimately embodied in the traditional story of the

growth and continuity of the national constitution, church and state, Hobbes sought to

use historical evidence to encourage beliefs supporting absolute sovereignty. 400 In

other words, even though his tactic should be obvious to the discerning reader,

Hobbes' references to history are selective and have a pragmatic justification which,

for Hobbes, consists in favouring evidence portraying the absolute character of the

sovereign power. Hobbes, in A Dialogue, tries to present a suitable example of what

Leviathan theorizes by showing, in historical terms, what have been the best ways of

governing. Of course, this tactic leaves open the possibility that history could prove

him wrong, but Hobbes always maintains that in fact it does not. So the example of

good government which Hobbes gives in A Dialogue tells us that the ancient kings of

England ruled as absolute sovereigns by taxing their subjects whenever it was

necessary, and that this made the country prosperous.

There is no Example of any King of England that I have Read of, that ever

pretended any such Necessity for Levying of Money, against his Conscience.

The greatest [sums] that ever were Levyed (Comparing the value of Money,

as it was at that time, with what now it is) were Levied by King Edw. 3d. and

399 See, Joseph Cropsey, Introduction to A Dialogue, pp. 13-14.400 See, Donald R. Kelley, Faces of History: historical inquiry from Herodotus to Herder , (New Haven, Yale University Press, 1998), pp. 186-187.

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King Henry the 5th. Kings of whom we Glory now, and think their Actions

great Ornaments to the English History. 401

Although he uses the past, his attention to it is instrumental: the Philosopher's interest

is in the future. The past is not authoritative per se as it was for the common lawyers.

It is so only because (and only where) the experience of absolutism revealed its

beneficial consequences. Even if absolutism occasionally has had some bad

consequences, which for the Philosopher consisted at most in "the [Kings] enriching

of now and then a Favourite", this does not change the fact that without an absolute

sovereign the situation becomes much worse. 402 Indeed, according to Hobbes, the

more sovereignty is shared, the more corruption and instability loom large. Only if

Hobbes had discussed situations where this was not the case, a possibility that he did

not really take seriously, then he would have truly tested the explanatory power of his

theory. But this is not his purpose.

Hobbes' purpose is to find an answer to the problems posed by the political situation

between 1660 and 1670. This requires the people to learn that the sovereign power

must be undivided. A Dialogue advocates a despotic, but enlightened, government

entirely controlled by the king. It is to demonstrate the desirability of this that Hobbes

establishes a science of law and studies history. The reference to ancient England ends

up being a way of illustrating how Leviathan's philosophical system worked in

practice, and what happened when it did not. Such reasoning constitutes an

ideological operation. Hobbes tries to develop the whole of his historical argument

along lines strictly predetermined by his theoretical politics.

In order to understand A Dialogue's ideology, we need to determine the perceived role

of the ancient constitution at the time. 403 The ideas associated with ancient

constitution ought to sustain Coke's position; indeed, on one view they are

constitutive of it. Most jurists believed in the antiquity and prestige of the Common

Law. This fact also led the common lawyers to regard the English legal system as the

result of an ancient constitutional order which they claimed was the best possible

model of judicial wisdom. Indeed, this ancient constitutional order was not separate

from common law, for the practices constituting the constitution - calling of writs for

Parliament, succession of monarchs, progress of laws, etc. - were all governed by 401 A Dialogue, p.66.402 Ibidem.403 On the origins of the idea of constitutionalism, see: Howell A. Lloyd, "Constitutionalism", The Cambridge History of Political Thought, pp.254-264.

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custom. The maxims embedded in these customs were derived from a time-honoured

constitution. 404 These rules happen to be the content of common law. As Pocock

points out, ancient constitutionalism depended on ideas essential to the practice of

common law. 405 So between ancient constitutionalism and common law there was a

logical relation which had important historical consequences. Coke contributed more

than anybody else to this. According to some he even invented it. He presented all

legal judgments defending the immemorial rights of Englishmen as conforming to the

historically true fundamental customary laws of the past. 406 The reason for this

conformity is because the rule of common law was to apply precedent. Accordingly,

certain juridical principles were considered unchangeable even by royal prerogative. 407 For instance, the common lawyers maintained that the Chancery and the King's

bench should never interfere with one another. 408 Hobbes is fully aware of this

position and of its implications contrary to absolute sovereignty. So A Dialogue's

purpose is to overturn Coke's historical claims. For this reason, Hobbes' protagonist in

A Dialogue, the Philosopher, interprets the situation during the previous centuries in

such a way as to support the royal prerogative to override any judgment.

Hobbes therefore organizes a complex rhetorical ploy. His aim is to show that the

constitutional system he advocates - i.e. absolute sovereignty - existed and worked

well in the past; and as such it is the embodiment of legal reason. He can claim, with

the common lawyers, that the English state in its ancient origins and development is

one of the highest expressions of reason and yet argue that Leviathan's political ideas

are the best interpretation and defence of the constitutional system existing in the

time-honoured past. Hobbes thus seeks to recruit the legitimizing power of history in

the service of his philosophical jurisprudence.

A Dialogue vis à vis the contemporary historical theories of sovereignty

When Hobbes wrote A Dialogue he was aware that in England most of the people

sustaining the contemporary theories of sovereignty justified their various juridical 404 See, Corinne C. Weston, "England: ancient constitution and common law", Ibidem, p.374. 405 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p.38. 406 See, Sir Edward Coke, The First Part of the Institutes of the Laws of England; or A Commentary Upon Littleton 19th ed. 2 vols. (London, 1832), fol.71 b; and also The Second Part of the Institutes of the Laws of England, Containing the Exposition of Many Ancient and Other Statutes (London, 1797), pp. 22-25. 407 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p.46.408 See, Sir Edward Coke, "Third Reports", T.F. Vol.11, The Reports of Sir Edward Coke, Knt. in English, in Thirteen Parts Complete (Dublin, 1793), preface, pp.ix-x.

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positions by employing historical arguments. 409 Indeed, history was employed by:

common lawyers and Parlamentarians who supported ancient constitutionalism and

mixed monarchy; the patriarchalists; the theorists of natural rights; the royalists

writers referring to feudal law in their arguments in favour of "royal prerogative"; the

supporters of royal absolutism who made use of conquest theory in order to justify the

king's right of dominion over the country.

As we have seen, Hobbes understood that in order to convince the readers of the time

to support royal absolutism, he had to take a position which addressed the juridical

issues of concern to them by employing not only deductive reasoning, but also

examples from history seemingly disproving the historical theories of sovereignty, or

those parts of them seemingly contrary to the conclusions of Leviathan's science of

politics. This is shown by the way in which A Dialogue considers ancient

constitutionalism and mixed monarchy, patriarchalism, the theory of natural rights,

feudal law, and the Norman Conquest.

According to ancient constitutionalism, the antiquity of the king in Parliament was the

foundation of the existing mixed monarchy in England. The Parliamentarians

considered the constitutional system as corresponding to the best possible way of

ruling the people. They also claimed that mixed monarchy prevented the emergency

of tyranny. This was the rational argument which, together with the historical appeal

to ancient constitutionalism as expressed by Coke's interpretation of common law,

characterized the opposition to royal absolutism. Accordingly, the Philosopher in A

Dialogue wants to discomfit the legitimizing power of history behind the theory of the

ancient constitution and of mixed monarchy by arguing that the ancient kings of

England have always been absolute sovereigns.

The other theories of sovereignty were not per se at odds with Hobbes' juridical

position. Nevertheless, there are important ideological differences between Hobbes

and the patriarchalists. In fact, patriarchal doctrines emphasize the natural existence of

power and authority. In this way, the patriarchalists deny the theory of the state of

nature and of the social contract on which Hobbes' juridical positions are based.

According to patriarchalism, political authority is understandable in terms of, or

derives logically and historically from the governance of the household exercised by

the father and husband. 410 So the power of the patriarch was absolute and of divine

origin, and it is the same for the power of the king. Filmer gave the most famous 409 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.46-47.

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philosophical expression to this the theory in his book entitled Patriarcha. 411 The

ideas of Filmer - and patriarchalism itself - are based on the theological arguments,

and are sustained by High Church royalists, even though Filmer incongrously thinks

that these ideas are also justified by Aristotle, and in the same fashion, had he known,

he could have appealed to Confucius! 412

On the contrary, according to the contractualism of A Dialogue the things that are

necessary for improving the human condition are temporal; Hobbes' secular attitude

identifies such requirements: these are the establishment of an artificial body - the

commonwealth, and of an absolute sovereign. This on its own would not be a real

opposition to patriarchalism as government can be concerned with temporal goods

and still have a theological base, but such a base does not exist in Hobbes' political

theory. Accordingly, Hobbes' reasoning - but not its political consequences is

something the divines disliked. This explains why High Church Anglicans, in order to

support non-resistance to the king made use of arguments taken from Filmer's

patriarchalism, rather than from Hobbes' theory of the social contract. Furthermore,

Hobbes objected to the fact that many patriarchalists and High Church Anglicans still

advocated the punishment of heresy on purely theological grounds, even against the

will of the present king. A Dialogue argues against them historically by claiming that

in the past the statutes against the heretics were imposed illegally by the popes,

foreign sovereigns, and were finally abolished by the Protestant Queen Elisabeth I.

From what I said so far it follows that it would be misleading to consider the juridical

and historical ideas expressed by A Dialogue as a secular version of patriarchalism.

Indeed, rather than as a secular patriarchalist, Hobbes in A Dialogue should be seen as

fully elaborating the consequences of Grotius' natural rights theory, of Spelman's

feudal law, and of conquest theory. In fact, these theories of sovereignty had a lot in

common with Hobbes' juridical position.

Grotius' theory of natural rights in England influenced, among many others, the

famous jurist Selden, and through him the so called "Tew Circle writers" (i.e. Lord

Lucius Cary Falkland, Dudley Digges, William Chillingworth, etc.), Hobbes himself,

410 See, Gordon J. Schochet, "Patriarchalism", The Blackwell Encyclopaedia of Political Thought, Edited by David Miller (Oxford, Basil Blackwell, 1987), p.369.411 See, Robert Filmer, Patriarcha; or the natural power of Kings, London, Walter Davis, 1680, Edited and Introduced by Peter Laslett (Oxford, Blackwell, 1949), passim, pp.40,57,58,61,78.412 See, Ibidem, p.76.

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and much later Locke. 413 In fact, Grotius argued that in principle all our rights -

except for the right to self-preservation - could be renounced by contract. 414 In this

way, he also justified the establishment of absolute sovereignty. 415 Accordingly, the

juridical positions expressed by De Jure Belli Ac Pads are not fundamentally different

from those of Hobbes. 416 For this reason, Hobbes in A Dialogue does not aim to

confute the theory of natural rights, but he does aim to confute the radical natural right

theory of the Levellers. Indeed, Hobbes rejects Milton's and Lilburne's optimism

about human nature. They make a radical use of natural law theory. For them,

individuals are fundamentally good natured and sociable. So people must carry into

civil society their original freedom intact, as a positive and inalienable moral

characteristic. Hobbes, by contrast, attributes to all men many traits, such as desire for

riches, power and pleasure, likely to put them into reciprocal conflict. However, the

main point about radical natural right arguments in the seventeenth century does not

consist only in the fact that they have amore congenial anthropology attached to them,

but also in the fact that the jus ascribed to men is itself limited by the knowledge that

others are to be ascribed the seme jus. Hobbes fundamentally rejects this recognition.

In the state of nature, the refusal to recognize equal rights to everybody, while they

are selfishly exercised by each individual, leads to a permanent war. 417 Moreover, a

fundamental balance in the capacity of being harmful makes the situation very

unstable. In asserting an original equality, Hobbes once again, as in his account of

contractualism and natural laws, is developing Grotian and Seldenian concepts, while

giving them a different political value. 418 In fact, for Grotius and Selden the social

contract involves also a compact between sovereign and subjects. 419 This is reflected

by the fact that the power of the ruler is just what the positive law has historically

attributed to him. 420 For Hobbes, on the other hand, only the individuals between

413 See, Richard Tuck, Natural Rights Theories (Cambridge, Cambridge University Press, 1979), pp.82,101,170414 See, Ibidem, p. 80.415 See, Hugo Grotius, De Jure Belli ac Pads libri tres, Amsterdam, 1646, Translated by F. W. Kelsey (Repr. in Classics in International Law, Oxford, Clarendon Press, 1925), I. III. VIII. 1-2, pp. 67-68416 See, Richard Tuck, "Grotius and Selden", The Cambridge History of Political Thought, p.519.417 See, Leviathan, Part I, chap. xiii, pp. 184-185.418 See, Richard Tuck, Natural rights theories, p. 101.419 See, George H. Sabine, Thomas L. Thorson, A History of Political Theory, Fourth Edition (Hinsdale, Illinois, Dryden Press, 1973), pp.398-400,415.420 See, Richard Tuck, "'The Ancient Law of Fredom': John Selden and the Civil War", Reactions to the English Civil War 1642-1649, Edited by John Morill (London, The Macmillan Press, 1982), pp.137-161, pp.140,144,158-160.

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themselves make a promise of obedience to a sovereign. So the political authority has

no defined contractual limitations on his right to exercise sovereignty. This is because

Hobbes points out more clearly and unambiguously than Grotius that since even the

weak are able to kill the strong by surprise, in the state of nature it is impossible to

impose a supremacy of one on another and, therefore, also logically impossible to

maintain peace.421 Only civil society's coercive laws, involving a mutual consent by

the citizens to them, ensure people's lives and goods. The state makes possible the

existence of private property, the sovereign power allocates and defend it. Grotius

who gives a philosophical, contractual, and historical basis for non-resistance to the

sovereign, offers Hobbes an organic model on which to base his case in favour of

absolute sovereignty. Indeed, as I shall discuss more in detail next, the Philosopher in

the last chapter of A Dialogue argues that a contract of absolute submission to the

king by the English people took place historically at the time of the Norman

Conquest.

The juridical and historical ideas expressed by A Dialogue, besides advocating

Grotius' natural rights, could be seen also as fully elaborating the ideological

consequences of Spelman's feudal law theory. 422 This is true for various reasons.

Indeed, feudal law could be interpreted as having a contractual base. In fact, feudal

tenures were by contract. 423 Moreover, Spelman's theory of feudal law was congenial

to Hobbes also because of its historical features. 424 Archeologus maintained that

Parliament was not immemorial but owed its being to the king who summoned his

vassals. 425 Accordingly, feudal society could be seen as a pyramidal structure with the

monarch at the top. The king as the English sovereign-lord was entitled to seigneurial

rights from every owner of land. 426 This is consistent with the particular situation that

developed in England. The Norman conquerors maintained their security by

establishing a feudal system characterized by lordship, and most of all by kingship,

421 See, Richard Tuck, Philosophy and Government, 1572-1651, p.200, and also pp. 172-175.422 Here we must remember that the word "feudalism" is not a usual seventeenth century expression as the scholars of the time talked only of "feudal law", or "jus feudale". See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p.70.423 See Karl Leyser, "Feudalism", The Blackwell Encyclopaedia of Political Science, Edited by Vemon Bogdar (Oxford, Basil Blackwell, 1987), p.232.424 See, J.G.A.Pocock, The Ancient Constitution and the Feudal Law, p. 122.425 See, Ibidem, p.109. See also, Sir Henry Spelman, Archeologus. In modum Glossarii (London, 1626), Part pp.79-80.426 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p. 101.

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more than in the rest of Europe. 427 The main difference between A Dialogue and

Archaelogus concerns the role of William the Conqueror in English history. Spelman

maintained that feudal law was imported into England with the arrival of the

Normans. 428 Archaelogus uses this idea to discredit Coke's historical thought and in

particular his belief in the immemorial antiquity of English customs. 429 But, at the

same time, Spelman denies that there was any Norman Conquest. 430 A Dialogue turns

Archeologus's reasoning upside down. The Philosopher considers the fundamental

principles of feudal law to have been in existence before William I. In addition to this,

he acknowledges the existence of the Norman Conquest. This means that Hobbe suses

a belt and braces argument.

And you are to believe, that those Men that hold their Land by the service of

Husbandry, were all bound with their Bodies, and Fortunes to defend the

Kingdom against invaders by the Law of nature: And so also such as they

called Villains, and held their Land by baser drudgery, were obliged to

defend the Kingdom to the utmost of their power. Nay, Women, Children in

such a necessity are bound to such service as they can, that is to say, to bring

Weapons and Victuals to them that fight, and to dig: but those that hold their

Land by service Military, have lying upon them a greater obligation: For read

and observe the form of doing homage, according as it is set down in the

Statute of 17 Edw.2. which you doubt not, was in use before that time, and

before the Conquest. 431

According to Hobbes, William of Normandy had conquered England and this fact

gave him a legitimate title to rule the country; but English kingship was feudal and

absolute even before his conquest. However, A Dialogue does more than simply state

that there was a Norman Conquest. The Philosopher uses this argument in order to

pursue his case in favour of absolute sovereignty.

Hobbes endorses the "conquest theory" arguably the most controversial interpretation

of the origins of the existing monarchy. In England, during the first half of the

seventeenth century, "conquest theory" was sustained, for instance, by James I,

427 See, Karl Leyser, "Feudalism", The Blackwell Encyclopaedia of Political Science, p.233.428 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p. 101.429 See, Ibidem, p. 102. 430 See, Ibidem, p. 107.431 A Dialogue, p. 164.

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Dudley Digges and Henry Feme. But for these royalists, as for Hobbes, this was not

the crucial element on which their political absolutism was based. However, for some

civil lawyers - like Sir John Hayward, William Fulbeke, and John Cowell - "conquest

theory" was the main argument in order to deny any limitation to royal power that

according to civil law texts derived from a grant from the people.432 Accordingly, the

Conqueror acquired an absolute right of dominion over his English subjects because

they had to make an unconditional submission to him in order to have their lives

spared. But, according to Pocock, it was only much later that "conquest theory"

became a politically influencial juridical argument in favour of royal absolutism. This

happened in 1681 when Robert Brady used the right of conquest in order to sustain

Charles II's absolutist policies during the "exclusion crisis". Brady was influenced by

Sir Henry Spelman's and Sir William Dugdale's study of feudal law; but he also

advocated Filmerian absolutist principles. 433 But if feudal arguments predated the

historical discovery of feudalism there is the basis of a critique of Pocock who

assumes the contrary. However, as Pocock points out, Filmer did not have much

knowledge of feudal law. 434 At any rate, In England royalist writers gave contrasting

juridical bases to "conquest theory". Most of them included it in political arguments

which involved historical and contractual justifications of absolute sovereignty. In this

way, people like Brady, in order to justify non-resistance to the king, invoked together

different juridical arguments such as patriarchalism, feudal law, and the right of

conquest. In a way, Hobbes in A Dialogue does the same thing. In fact, the

Philosopher refers to natural rights, feudal law, and Norman Conquest in his search

for the juridical and historical foundations of absolute sovereignty in England.

Concluding remarks

Hobbes uses the theories of natural rights, feudal law, and Norman conquest in order

to prove that ancient constitutionalism, mixed monarchy, and patriarchalism are

juridically and historically wrong. Hobbes in A Dialogue makes use of diverse

arguments which are philosophical, historical, and contractual, in order to confute the

theories of sovereignty which are at odds with Leviathan's juridical principles. Indeed, 432 See, J.P. Sommerville, "Absolutism and royalism", The Cambridge History of Political Thought, p. 365.433 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p. 182.434 See, Ibidem, pp. 154-155.

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in A Dialogue the Philosopher tries to establish both a legal and an historical

justification for Hobbesian political positions. At the same time, as it appears for

example from the criticism against the grant made by kings to Parliament of the

liberty to deny money for the army, Hobbes seems implicitly to recognize the

existence of differences between his ideas and the real juridical structure of the

country as it developed through history. 435 The way in which in A Dialogue he

considers the English constitutional system depends on his theoretical approach to

politics and jurisprudence. Modern rationalism represents the most evident

philosophical background of the book. What Hobbes claims to be doing with his

rationalistically oriented juridical and historical analysis is to express a critical but

honest defence of the contemporary political establishment. In real terms, in spite of

the rhetorical allegiance to the contemporary legal system, A Dialogue is advocating a

definite political change towards royal absolutism. The Philosopher's scarcely

concealed mistrust for common law, together with his contractual theory, and secular

purposes, makes his position different from the ideological background of most future

Tories. Indeed, the Tories do not differ from the Whigs in their general praise for

customs and tradition. Hobbes studies English law with a very ambitious project in

mind. He does not only want to avoid the possibility of being convicted as an heretic.

A Dialogue also answers to his plan to find historical and juridical confirmations for

Leviathan's science of politics. In sum, the attempt to achieve these goals becomes an

interesting instrument for better understanding his philosophical and historical

conceptions.

435 See, A Dialogue, pp.63-64.

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CHAPTER III

A CRITICAL EXPOSITION OF A DIALOGUE

Prelude on the identity of the text

The text of A Dialogue, as it appears from the Molesworth edition, has ten sections, whose titles may be Hobbes', yet nothing confirms, or contradicts, their correspondence to the original writing. This type of uncertainty does not refer only to A Dialogue. In fact, we do not even know whether the marginal headings in Leviathan are Hobbes', or his printers. The last edition of A Dialogue made by Joseph Cropsey has removed three chapters; supposedly, this conforms to what was originally published by William Crooke in 1681. In fact, the book printed by the official publisher of Hobbes, two years after his death, is the first available copy of A Dialogue. In this edition, which contains many mispellings and errors of punctuation, necessitating further editing, many paragraphs begin with the first words in capital letters. Often it is not entirely clear whether the enlarged characters indicate the opening of a new section, or a different topic within the same one. This explains the difference among the three new English editions of A Dialogue, all made long after the book was published for the first time. Generally speaking, the work of Cropsey is more accurate than the one of Molesworth, which does not always report all the useful emendations made in The Moral and Political Works of Thomas Hobbes of 1750.436

What the American professor did also involves some syntactical exegesis of the text. He specifies any divergence from Crooke's publication of 1681. Nevertheless, even the latest edition does not seem to be immune from ambiguities. Much of what still remains unclear may depend also on the relation between the original writing and the - one or several - subsequent transcriptions. In regard to this we lack any information. The manuscript was still a draft that unfortunately cannot be consulted because it is lost. As a result, there appears to be no conclusive proof even that the titles present in the 1681 edition correspond to what Hobbes originally wrote. Nevertheless, they must be closer to the original version than the subsequent ones, so we should rely primarily on them, as Cropsey tries to do.Now I will make a short survey of A Dialogue. All versions agree that the title of the first chapter of the book is "Of the Law of Reason". These pages look into the way in which all juridical rules and the study of law are "rational". There is agreement also on the second chapter, "Of the Sovereign Power", which analyses the nature of authority in civil society. The Philosopher and the Lawyer debate the historical origin of civil authority. According to Molesworth, the third section is entitled "The King is the Supreme Judge"; but Cropsey does not report this title. Allegedly, for the American scholar, that is because the Philosopher fails to prove in historical terms the Royal right of supremacy over the judicial system. Yet, again, the next chapter, "Of Courts", while analyzing the jurisdiction of the various Courts, emphasizes how the authority of the judges has always been derived from the king. "Of Crimes Capital" studies how the English juridical system has defined the most serious offences. These 436 About the relationship between the edition of A Dialogue anonymously published by John Campbell in 1750 and the edition of Molesworth, see: Joseph Cropsey, Introduction to A Dialogue, p.2.

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are infringements of law which endanger individual citizens and, at the same time, threaten public order; so they end up imperilling the whole "political community" established to protect the life of its members. The section entitled "Of Heresy" intends to show how a private opinion, when it leads to no action contrary to the statutes, is never in itself a crime. "Of Praemunire", the seventh section, emphasizes that, according to long established laws, the Courts of the kingdom, and only they, can make judgements concerning English subjects. The eight chapter "Of Pardoning", highlights the royal prerogative of exercising mercy. Similarly, chapter nine, "Of Punishments", looks into the past in order to stress the importance of the king's duty, and right, to determine all punishments. The conclusion, "Of the Laws of Meum and Tuum", points out that the existence of property follows the establishment of civil society and depends on the sovereign's will. The work finishes abruptly. The tenth chapter remains incomplete. Perhaps, for this reason, Cropsey does not consider the last pages of A Dialogue to be a separate section. In the same way, he also omits to report the title "Of Pardoning", so making "Of Punishments" incorporate three sections of the Molesworth edition. The changes in the titles are the only significant alteration of the text.437

Hobbes in each chapter of A Dialogue tries to refute, both in historical and legal terms, a number of statements contained in The Institutes. Hobbes starts from what he regards as the general, and most fundamental, juridical mistakes of Coke; then his attention increasingly focuses on particular aspects of the English legal system, i.e. the nature of some crimes and their punishment. The end of A Dialogue looks to the overall consequences of the previous criticism of The Institutes, but Hobbes' reasoning seems not entirely clear, because his work is unfinished. Whilst all this explains logically the order in which the Philosopher and the Lawyer analize every topic, there is no direct concordance between the titles of the sections of A Dialogue and the subjects analysed in the various parts of The Institutes.Hobbes considers law as the rational command of the sovereign which overrides custom. I will try to see how in each chapter of A Dialogue he applies this principle in his study of the various aspects of the English legal system. In this way, it should be possible to understand the position of A Dialogue and of Hobbes' rhetorical enterprise in his philosophical system. With this purpose, I will analize next each section of A Dialogue, maintaining the original order of this work.Hobbes in his study of the English juridical system deals with the following subjects: The rational foundation of law; The prerogatives of civil authority; Law and justice; The English courts; The capital offences; Is heresy a crime?; On jurisdiction; The enforcement of Law; The origins of government, property, and Parliament. Each of these subjects corresponds to the main topic of one heading of this chapter, and also to the main topic of the corresponding section of A Dialogue; in order to help the reader, I will write again these subjects between brackets after Hobbes' titles.

"Of the Law of Reason" (The Rational Foundation of Law)

This chapter begins by giving some generic indications about the purpose of jurisprudence as a science. Hobbes deals with such a topic mostly in an indirect way because he mainly analyses the reasonableness characterizing juridical norms. Science

437 In Cropsey's edition, "Of Punishments" puts together what in Molesworth edition was "Of Pardoning", "Of Punishments", and "Of the Laws of Meum and Tuum". As we have already noticed, this depends on a different interpretation of the text published, and perhaps also edited by Crooke in 1681.

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must help the people to understand law and its rationality. As regards the notion of reason that should ground jurists' proper conception of the English legal system, the Philosopher and the Lawyer operate according to two different criteria. The Philosopher understands the rationality of law as a formal characteristic of "explicit" norms that exist only because explicitly made so in order to become juridical rules; this leads to legal positivism. The Lawyer follows a tradition considering law as descriptively rational, expressed by custom, and fundamentally "implicit" in what is reasonable.438 They specify their differences by: (a) in the case of the Philosopher, referring to Hobbesian principles fully expressed in Leviathan; (b) in the case of the Lawyer, quoting Coke, but - after the discussion - also agreeing with Hobbes. According to some critics, but not all, the relation between Leviathan and A Dialogue is problematic. According to Cropsey, and T. Mcpherson agrees, A Dialogue involves significant changes to Leviathan's political positions, allegedly, because Hobbes' study of law is a moderate and liberal minded work.439 But Harold J. Johnson criticizes this view, and by agreeing with him, I will show that A Dialogue reveals the overall consistency of Hobbes' philosophy and legal thought. 440

Most of the first chapter of A Dialogue deals with the relationship between reason and the nature of law. However, towards the end of this chapter there is a change of topic. The Lawyer speaks of the necessity to punish disobedience, and all the other evil actions of man, which weakens a country against its foreign enemies. The example of international society offers to Hobbes the opportunity to state that, because there is no authority "to punish their Injustice", many countries, like the individuals in the state of nature, will attack their neighbours at the first opportunity. This is supposed to show to the citizens the necessity of obeying the king. In fact, only in this way can the people be united, and strong so to avoid being conquered by foreigners. Hobbes' assumption that mutual fear is the only basis for peace among nations, is an idea which had far reaching consequences in the history of philosophy.The distinction between internal and external conflict became particularly relevant the following century: fighting a foreign enemy could prevent more feared social struggles. Vico's conception of history (1725) considering war a pattern of mankind, accepts Hobbes' view of states as being in a condition of conflict, but shows this formal recognition of potential enemies to be the condition for peace: "Wars are to secure people's peace". Vattel gave to Hobbes and Grotius the merit of providing, though imperfectly, an idea of international right:

Since nations are composed of men who are by nature free and independent, and who before the establishment of civil society lived together in the state of nature, such nations or foreign states must be regarded as so many persons living in the state of nature.441

From this follows that the rules for the conduct of one sovereign toward another are laid down in the Law of Nations which is the same as the Law of Nature. Hobbes, unlike Harrington, did not propose that the state be constituted for the purpose of

438 See, Harold J. Johnson, Review of J. Cropsey's edition of A Dialogue, Ethics, Vol.83, (1973), pp.261-266, p.265.439 See, Joseph Cropsey, Introduction to A Dialogue, pp. 13-14 and 48; see also: T. Mcpherson, Review of J. Cropsey's edition of A Dialogue, Political Studies, VoLXX (1972), pp.253-255, p.254.440 See, Harold J. Johnson, Review of Cropsey's edition of , A Dialogue, pp. 262-263.441 E. De Vattel, The Law of Nations or the Principles of Natural Law applied to the Conduct and to the Affairs of Nations and of Sovereign, trans, by C.G. Fenwich, Vol.III (Washington, The Classics of International Law 1916), p. 68.

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expansion by military conquest. 442 He envisioned foreign relations characterized by a relatively stable state of suspicion with occasional use of force rather than an all-out continuous struggle. However, he argued that if the sovereign is to secure the society against both internal and external threats, he must have effective power.

"Of the Sovereign Power" (The Prerogatives of Civil Authority)

The next section, "Of the Sovereign Power", pursues the Philosopher's claim that the king must have effective power, if he is to be able to make laws, as he must, if we believe the first section. This argument is again mainly a rational one. However, it is not always possible to disentangle when Hobbes' statements depend on history and when on his deductive method. The Philosopher uses historical examples to discomfit the Lawyer's case. For instance, the Lawyer questions if the people of the country would see much difference between allowing the king to take what he wants from his subjects or letting a foreign invader do the same. The answer stresses that at the time of William's Conquest all Englishmen were despised and treated harshly by their Norman masters. 443 Hobbes by making such an historical example wants to show that it is certainly advisable -if possible - to avoid being dominated by strangers. At this point, the Lawyer mentions the laws concerning the sovereign's right to maintain an army. The Philosopher rejects the idea, arguably contained in some statutes, that the king may not be allowed to levy money for the soldiers without parliamentary approval. 444 This would contradict the general aim of legislation to protect the lives of the citizens. Here Hobbes' reasoning is mostly deductive. The rest of the section proceeds to give historical reasons for the a priori argument in favour of the sovereign's freedom to be the sole legislator. The Philosopher tries to confute all the various opposing claims. By doing so, he wants to justify Hobbes' conception of sovereign power in two ways: (a) according to reason; (b) historically. However, the second way only complements Hobbes' deductive method. That is to say, history supports - but it does not give rise to the rational arguments of the Philosopher which always recall Hobbes' previously expressed political and juridical positions. This is a general feature of this chapter, and throughout A Dialogue. Hobbes' efforts at historical argument in A Dialogue tend to be rhetorical rather than documented; nevertheless, they meet the essential requirements of Leviathan's political absolutism. A Dialogue surely shows that absolute sovereignty is necessary, by arguing that: (a) it is really the case in English law that the king is the only sovereign; (b) where people have departed from this principle, like during the 1640s, chaos has followed. The second argument (b) especially is rhetorical, in the sense of being a generic example. But it still complements the theoretical argument in Leviathan. This is necessarily so, in view of thehypothetical status of Hobbes' theory!

"The King is the Supreme Judge" (Law and Justice)

This section runs on without interruption from the previous discussion about the rights of sovereigns. We know that this is a section because of the title in the margin of the text of William Crooke's edition. The Lawyer admits that the king is supreme judge, but by the historical authority of common law. Whereas in fact, the judges of both the Benches have their offices by the Kings Letters Patents, the Lord Chancellor by 442 See, Maurice M. Goldsmith, Hobbes's Science of Politics, p. 192.443 See, A Dialogue, p. 59.444 See, Ibidem, p.61.

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receiving from the king the Great Seal of England.445 Hobbes links this origin of the power of the judges with that of the source of statute authority. So, even if some statutes attribute specific powers over the judicial system to the sovereign, this can only confirm what were already his rights. Then there is a change of topic: A Dialogue discusses the meaning of law. According to the definition given, in any case, law by itself establishes justice. Indeed, only the sovereign, in England the king, can make law. This means that he is also the only one who can interpret all juridical rules, and consequently who can make sure that each decision taken by the judges corresponds to justice. A Dialogue speaks of the distinction between the authority to appoint the judges and the exercise of judicial power, Hobbes wants both in the hands of the sovereign. The English kings appoint all legal officers, but should also have the final right of judicial interpretation by right of sovereignty. For Hobbes, it is always necessary to maintain a strict conformity to law in the judgements made by the courts. In fact, only such a conformity to the rules established by the sovereign can be called justice. According to A Dialogue, the only way to achieve that is by keeping the judicial system under the direct control of the king. In other words, justice requires that the same authority that legislates must also be supreme judge. As most critics point out, Hobbes' conception of justice is not concerned with "morals" as such, but with enforcing the sovereign's will. This is the result of Hobbes' social contract and authorization theory. Accordingly, all the subjects owe equal obedience to the king, including his subordinate authorities such as the judges, who have no real autonomy, or power on their own. In fact, only the sovereign has the means to make each juridical rule known to everybody, and also to ensure the application of the decision taken by the courts. So it is because of the power of the king that the people know what they are obliged to do or not to do. This is also the reason why the citizens can understand what the law defines, and the reason why they can obey its commands. What the people are still free to do, because it is not forbidden by any rule, is their "right".446If the situation is unclear, like for instance, if a law was not announced to the people and they had no opportunity to take notice of it, Hobbes acknowledges that they cannot be expected to obey it, and that any harm inflicted on them in such cases is not a punishment, but an act of hostility. 447 Nevertheless, he still maintains that there is no judge other than the sovereign himself who can declare a law invalid, or can "give Remedy to them that by the Ignorance, or Corruption of a Judge shall suffer dammage".448 In this way, as James Stoner points out, rule by law cannot be a "right" which the subjects can demand, but it is supposed to be the most efficient way to bridge the gap between the intentions of the sovereign and the actions of the people. 449

The king has always the authority to judge whether the behaviour of his subjects conforms to his commands. In other words, he must control the judgements made by the courts. According to A Dialogue, in England, the judicial instrument historically used by the sovereign in order to enforce these principles is the "Court of Equity" (Chancery). In this way, "royal prerogative" - in accordance with civil law - gives expression to the king's right to be supreme judge whenever he deems necessary. In all these legal stands about the judicial power of the sovereign there is full 445 See, Ibidem, p.68.446 See, Ibidem, p.73.447 See: Ibidem, p.71; Leviathan, Part II, chap.27, p.345, chap 28, p.354; Maurice M. Goldsmith, Hobbes's Science of Politics, p.201.448 A Dialogue, p.70.449 See, James R. Stoner Jr., Common Law and Liberal Theory, p.108 .

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concordance, or congruity, between A Dialogue and Leviathan. The Philosopher, in A Dialogue, tries to prove - by referring to Bracton and Fleta - that in England the king historically had this right to be supreme judge.450 However, these are generic references. Most of Hobbes' juridical arguments, which are in favour of attributing to the courts a role subordinate to the sovereign, still depend on rational considerations deduced from Leviathan's philosophy, and not from English legal history.

"Of Courts" (The English Courts)

"Of Courts" is A Dialogue's longest chapter. In it Hobbes expresses his views concerning the structure and features of the English judicial system. Whilst doing this, Hobbes analyses what his theory of sovereignty implies; he looks for its grounds beyond Leviathan's philosophical system, inside common law itself. Hobbes tries to determine the principles governing different judicial cases. By doing this, he also gives his own interpretation of how each court has historically embodied its specific functions - or at least some of them - necessary for the enforcement of law.The statements which Hobbes makes in this chapter are typical of what we would expect from a command theorist and from a legal positivist. 451 Indeed, as a command theorist Hobbes argues that the English judicial system is and ought to be the expression of the command of the king, and as a legal positivist he denies that laws need to be just, right, moral, or good in order to be laws and to be applied by the courts. 452 As in the previous chapter, in order to convince the readers of these ideas, he makes continuous reference to religious and historical arguments in a way which, as Skinner points out, corresponds to the heightening of his conversion to the ideal of an alliance between ratio and oratio.453This method reflects the fact that in the seventeenth century detachment from or indifference to religion and history was almost inconceivable in any juridical, political or philosophical argument.454

450 See, A Dialogue, pp.74-75.451 See, Maurice M. Goldsmith, "Hobbes on law", The Cambridge Companion to Hobbes, pp.274-275.452 Hobbes's Dialogue of the Common Laws provided some inspiration for John Austin's later version of command theory and legal positivism. However, there are some important differences between Austin and Hobbes. According to Austin, laws must refer to a general class of actions, whereas Hobbes, a more radical command theorist, includes as laws types of particular commands. Moreover, Austin makes the sanction or threat of penalty an essential characteristic of law, whereas Hobbes does not. Indeed, Hobbes distinguishes between parts or aspects of laws that guide subjects and those that set sanctions; the former give existence, the latter efficacy to laws. However, Herbert L.A. Hart, the most sophisticated exponent of modem legal positivism, criticizes both Hobbes' and Austin's command theory of law. Hart argues that legal rules are content-independent peremptory reasons for actions. Their sources may be commands but may equally be any fact having the normative significance attributed to it by a rule of recognition accepted by judges and officials for any reason other than fear of immediate sanction. Legal philosophy should understand and reproduce the viewpoint or "internal attitude" of those participants in a legal system for whom law is a genuine reason for action and something of value (though not necessarily of moral value). A legal system is a combination of primary and secondary rules whose systematic unity depends on the existence of a particular secondary rule, the "rule of recognition", which states those properties which a primary rule must possess to be "recognized” by those charged with the application of such rules as a "valid" rule of the system. In this sense, all valid law must have a social origin which judges can recognize from its social source rather than from the understanding or evaluation of its contents alone. See: Ibidem, pp.275-276; also, John Austin, The Province of Jurisprudence Determined (New York, Weidenfeld and Nicolson, 1954) pp. 15-24; Herbert L.A. Hart, The Concept of Law (Oxford, Clarendon Press, 1961), chap.6.453 See, Quentin Skinner, Reason and rhetoric in the philosophy of Hobbes, p.353.454 See, David Johnston, The Rhetoric of Leviathan: Thomas Hobbes and the Politics of Cultural Transformatl (Princeton, Princeton University Press, 1986), p.135.

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This section starts by enumerating the great many functions that the judicial system has to explicate in order to fulfil the king's exercise of sovereignty. Then, quite curiously, the Philosopher decides to state first the difference between a sin and a crime. Perhaps, this corresponds to his intent of secularizing the role of justice, which does not, or rather should not, deal with beliefs or ideas as such. For Hobbes, an offence always involves intention and civil authorities do look into conscience- but only where an act has been performed. 455 Crime is a sin, in that it breaks at the same time the command of God and of the sovereign; it requires the judges to punish it. But to purpose disobeying the law, which becomes a sin only when perpretated, is always sinful in itself. Hobbes' concern in A Dialogue is to make clear that the identification of what is sinful depends on - and changes -according to statutes.However, in order to explain why Hobbes here is so concerned with the relation between sin and crime, we have to locate this relation in the context of the seventeenth century debate over the nature of justice. Lawyers and philosophers alike, not to mention theologians, were discussing whether justice was contingent upon God's command or whether it was embodied in the self consistent, necessary and unchangeable rules of divine wisdom.456 If the former, then justice is arbitrary, having no essential nature, and can be known empirically only as knowledge of the facts of God's utterances. This is the voluntarist or nominalist doctrine of William of Ockham advocated by Hobbes, and which was also linked with the position of Luther and Calvin, according to whom, people are saved or damned by God's arbitrary election.457

But if the latter, then justice does have an essence distinct from its being willed, and it can be intuited by rational agents. This is the essentialist or realist doctrine of Plato, Aristotle, and the medieval scholastics of the school of Aquinas, which archbishop John Bramhall and later Leibniz invoked to reject Hobbism.458

At the time, voluntarism and essentialism were often presented as a choice between the awesome, preremptory God of Abraham and Isaac, and the philosophical, rational God of the Johannine Logos.459 Formulated in terms of temporal jurisprudence, this choice was whether justice is constituted by the will of the sovereign in vacuo, or whether it flows from and participate in the essential nature of things.460 According to Hobbes, God's arbitrariness is exactly mirrored in humanarbitrariness.461

However, as Richard Tuck points out, Hobbes' views were not only influenced by Marsilius, Luther and Calvin but also, and most significantly, by the classical sceptical relativism of Pyrrhoand Cameades, and by the late Renaissance one of Montaigne.462 Because he advocated this relativism, Hobbes was accused of ethical scepticism and libertinism. 463 Accordingly, Leviathan's statement, "where law

455 See, A Dialogue, p.78.456 See, Mark Goldie, "The reception of Hobbes", The Cambridge History of Political Thought, 1450-1700, pp.58, 615, p.589.457 See, Ibidem, p.593.458 See, Ibidem, p.590.See, Ibidem, p.606.459 See, Ibidem, p.589.460 See, Ibidem, p.590.461 See, Ibidem, p.606.462 See, Richard Tuck: "Grotius, Cameades and Hobbes", Grotiana, n.s., 4 (1983), pp.43-62; "Optics and Sceptics: The Philosophical Foundations of Hobbes's Political Thought", Conscience and Casuistry in Early Modrn Europe, Edited by Edmund Leites (Cambridge, Cambridge University Press, 1988), pp.235-263; "Hobbe’s moral philosophy", The Cambridge Companion to Hobbes, pp.192,198.463 See, Mark Goldie, "The reception of Hobbes", p.607.

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ceaseth, sin ceased", was taken by the clergy as an attempt to justifylicentiousness.464

So in the late 1660s an intensification of the attack on Hobbes was combined with moral outrage at the licentiousness of Charles IPs court by which he was protected.465

For Hobbes this attack was nothing but a consequence of the Aristotelian perversion of Christianity, which he endeavoured to destroy, and upon which was built the material power of the private castes of the clergy and of the common lawyers, whose talks of innate truths, and of authority and sovereignty in the church and in the judicial system, were ideological weapons for imposing their own values.466Thus, for Hobbes who was leaning towards religious toleration,467 the secularisation of politics becomes an eschatological project within which voluntarist theology was the "true religion" able to generate "true politics".468

In accordance with these principles, Hobbes has no interest in establishing a substantive relation between moral good, as opposed to sin, and statutes. What is sinful can change during the time with no relation to the content or nature of actions in themselves, but only to their juridical context.469 So both Leviathan and A Dialogue maintain that, since seeking to break the law always involves a sin, once something becomes subject to legal regulation it is sinful to transgress such aregulation.470 For Hobbes, the English courts can punish a sin only in so far as the judges find this correlation with crime. Indeed, at any rate, the concern of the judicial system is with crime, and not -or only as a result of crime - with sin. This chapter outlines the relationship between sin and crime by introducing Hobbes' analysis of the functions deputed by the sovereign to his courts. The king establishes the jurisdiction of each court in order to apply penalties against those who break the law, and who also consequently commit a sin.Hobbes, obviously, takes for granted that the king cannot personally attend to the very great number of cases. Consequently, the Philosopher recognizes that to effectively prevent the various acts against the law it is necessary to create for each kind of offence a court entitled to punish it.471However, he maintains that only the sovereign can define the jurisdiction of each court, otherwise there will be confusion in administering justice.472 Hobbes rejects Coke's opinion that the king, having deputed the ruling of so many sentences to different judges, has lost his authority over the judicature.473 The Philosopher reminds us that there is a big difference between tranferring and committing some power. The first means that someone had deprived 464 Leviathan, Part II, chap.27, p.337.465 This situation is exemplified by the case of Daniel Scargill, a Cambridge don expelled for Hobbism and "great licentiousness" in 1669. In fact, the beliefs which the divines subsequently convinced him to denounce as the cause of his wrong behaviour, included the idea "that all right of dominion is founded only in power", and "that all moral righteousness is founded only in the law of the civil magistrate". See: Mark Goldie, "The reception of Hobbes", p.607.466 See: Ibidem, pp.614-615; also, John Aubrey, Brief Lives, ed. Andrew Clark, 2 Vols. (Oxford, Clarendon Press, 1898),VoI.l,pp.358,394.467 I will discuss this topic in the section "Of Heresie".468 See, J.G.A. Pocock, "Time, History and Eschatology in the Thought of Thomas Hobbes", Politics, Language and Time: Essays in Political Thought and History (New York, Atheneum, 1973), pp.148-201, p.161.469 See, A Dialogue, pp.78-79.470 See, Ibidem; see also: Leviathan, Part II, chap.27, pp.335-336.471 See, A Dialogue, p.79.472 See, Ibidem, p.88.473 See, Ibidem, pp.88-89; see also: Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, Concerning the Jurisdiction of Courts (London, 1809), p.71.

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himself of it; the second that this person had only granted the right of exercising some faculty in his name and under himself, therefore he still remains the ultimate owner of every prerogative.474 In other words, the king has committed some authority to his courts - without losing any of his power - in order to punish crime, which is all the more obnoxious because it always involves also a sin. This in turn implied the sovereign maintains his right to choose what is best for the sake of everybody. Since the persistence of contradictory sentences would damage the citizens, imperilling the country, it is necessary that one court finally corrects the other courts' mistakes, save for a personal intervention of the sovereign. Hobbes vindicates the Chancery as the highest body of the English legal system.475 This is an attempt to demonstrate how unitary sovereignty was embodied in England by monarchy. 476 In fact, the Lord Chancellor, nominated directly by the king, represented the most direct expression of the sovereign's will, while the whole judicial system was the final result of his commands.These pages of A Dialogue are supposed to show that all the courts of England have developed, as a result of the commands of the English kings, as the means to punish crime.Consequently, the power to make all judgements is still under the authority - and control - of royal prerogative. However, Hobbes' claim that reason requires a certain type of judicial system, and further implication that indeed ratio has actually shaped the English laws, is, as yet, a rather vague and abstract assumption. Indeed, without some evidence deriving from practical examples of good application of justice under the king's authority, or bad without it, the Philosopher would not prove his claim that the judicial system embodies the rationality of the sovereign. In other words, to be consistent Hobbes must explain what is concretely reasonable. A Dialogue faces this problem by analysing the application of the statutes in their historical context, as it does in the next section.

"Of Crimes Capital" (The Capital Offences)

Hobbes discusses the capital offences after having given his interpretation of the role of the English courts. This answers to A Dialogue's aim of proving that the judicial system in its main legal definitions practically corresponds to the Philosopher's conception of what is reasonable. Hobbes wants to show that where such a correspondence does not exist the fault lies mainly in Coke's bad teachings, and it is necessary that the sovereign intervenes directly to make the corrections which are needed. In order to vindicate these principles, A Dialogue discusses how English law defines both High Treason and the legal proceedings that must be followed in order to punish traitors after their identification. Hobbes considers two statutes to be still in force, 25 Ed.III and 1 Ed.6 c.12, according to which High Treason is constituted by acts manifesting the simple, but incontrovertible intention of betraying the sovereign. 477 According to Hobbes, the sovereign must treat traitors as a man does his enemies in the state of nature. So the Philosopher says that the king must always maintain his right to kill, or to pardon an enemy without indictment. 478 The same purpose of 474 See, A Dialogue, pp.88-89.475 See, Ibidem, pp.86,91.476 On this topic, see, Maurice M. Goldsmith, "Hobbes's 'Mortall God': is there a fallacy in Hobbes' theory of sovereignty?", History of Political Thought, Vol.1, Issue I (Spring 1980), pp.33-50, pp.43-44.477 See, A Dialogue, p 108.478 See, Ibidem, p. 105.

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establishing a complementary relation between natural and civil law through the rationality of the sovereign, without creating any limit to his legislative power, explains the way Hobbes looks into the general definition of felony, the class of the most serious crimes, like murder, robbery and theft. Even though the Philosopher maintains that felony, like treason, is another malum in se, a crime in itself before the making of any statute, he neither speaks of any obligation for a king to punish felons, nor specifies what should be the appropriate penalty for felonious acts. 479 In this way, he confirms Hobbes' view that even though murder is in any case a crime by itself, only civil law specifies which type of killing corresponds to this particular criminal act. Then Hobbes outlines his comments concerning how English jurisprudence considered some of the main criminal actions. In fact, here he discusses the various types of Homicide, Suicide, Petty Treason, Robbery, Theft, Breaking in, Sodomy, Rape, the Burning of houses, and acts related to Witchcraft. In real terms, A Dialogue is advocating the direct intervention of the sovereign to correct the existing legislation.Nevertheless, the Philosopher makes some sound remarks about legal anomalies in England. In particular, these remarks point out Hobbes' criticism of:

(a) Common law consideration of some accidental killings as murders; 480

(b) The fact that the heirs of a person committing suicide may lose their rights to inherit his properties, because a man who kills himself is regarded as a felon, and consequently the king seizes his goods and chattels; 481

(c) Coke's assumption that it is felonious for a Servant of the King 's Household to compass the death of a Lord only if this Peer belongs to the Royal Privy Council; 482

(d) The illogical consequences of the Institutes's definition of larceny, which, for example, make it a capital crime to take some wood from a private property without permission, while it is only a minor trespass to steal a whole tree from the same place; 483

(e) The contradiction between Coke's definition of sodomy and rape with how he actually considers these actions. In fact, the jurist supposes that both crimes are committed with animus felleus. However, in spite of this, according to Institutes, such felonies can take place only if sexual intercourse was consumated; 484

(f) The fact that there must be some burning before the attempt to set fire to a house is afelony; 485

479 See, Ibidem, pp.111-112.480 See, Ibidem, pp.115-116.481 See, Ibidem, pp. 116-117.482 See, Ibidem, p. 117.483 See, Ibidem, pp.119-120.484 See, Ibidem, p. 120.485 See, Ibidem, pp.121-122.

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(g) Believing in the Devil's intervention in the acts of witchcraft. 486

At the end of this section, the rhetorical enterprise of the Philosopher becomes the crucial element in his study of the relationship between what is reasonable and how the English legal system considers the various felonies. In fact, as Cropsey notes, A Dialogue's transition from capital crimes to heresy is significant rhetorically. 487Indeed, it points out against Coke - who ranked heresy before murder as a crime - the passage from acts which are in themselves harmful to society, to those which are not, and which therefore constitute a different type of problem. Hobbes analyses this issue, heresy, in the next section. In this case, his philosophical aim of vindicating the rationality of law as the command of the sovereign becomes also the means of showing that heresyis no longer a crime. Indeed, he wanted to prevent his enemies from accusing him of this crime. However, I will argue that Hobbes is not only or primarily concerned with this threat, and he does more than merely excuse himself from the charges of heresy.

"Of Heresie" (Is Heresy a Crime?)

Hobbes now deals with heresy, one of the most controversial issue of the seventeenth century. He dedicated a work entirely to this subject: An Historical Narration Concerning Heresy and the Punishment thereof. 488 This work maintained that the civil law should not prosecute heretics anymore. Hobbes outlined his claim after explaining the origin of the word heresy and how it came to denote a crime. A Dialogue does the same thing. Two considerations make Hobbes choose an approach based on history: (a) to clarify the issue of heresy he needs to explain the development of the ancient theological disputes; (b) since the common lawyers saw the essence of law in tradition, showing the actual formation of the statutes was to challenge them on their own ground.According to Hobbes, heresy did not originally signify anything bad. Among the ancient Greeks it simply denoted opinions that some people denied, which others accepted by someone else's authority. So the word pointed out the choice of one of the several doctrines propagated by the Pythagoreans, the Academics, the Stoics, the Epicureans, the Peripatetics and others. A Dialogue notices how many disputes arose among the various philosophical sects. The quarrels begin in Greece and continue through the time of the Primitive Church untill the fourth century and later. Eventually, two schools prevailed. The Platonic supposedly influenced the best, those founding their conceptions on the ideas of good and justice; the Aristotelian prevailed among the people using the scale of categories to express their reasoning. 489 The Philosopher says that in the Roman Empire, together with the spreading of Christianity, there developed also an ecclesiastical hierarchy to look after the converts, appoint the presbyteries and solve the doctrinal controversies. To this the Lawyer adds that during the same period of time, the followers of Aristotle gained great ascendancy over the others: their rhetorical skill, derived from the knowledge of formal logic, allowed them to reach the highest positions inside the Church. 490 The Philosopher holds them responsable for the negative meaning assumed by the word 486 See, Ibidem, p. 122.487 See, Joseph Cropsey, Introduction to A Dialogue, p.35.488 The English Works of Thomas Hobbes, Vol.IV, pp.385-388.489 See, A Dialogue, p. 124.490 See, lbidem, p. 125.

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heresy. Every attempt to reconcile the other Greek or Roman philosophies with Christianity caused new disputes. In order to settle them it was often necessary to call a council of bishops. The people dissenting from its deliberations were called heretics. Here Hobbes underlines how there is no juridical basis for a charge, because the free expression of an opinion, even if it is wrong, does not violate any natural law. In other words, expressing an idea -when it is not already rebellion itself, such as advocating resistence to the civil authority – becomes criminal only if there is a positive law against it. This seems odd in view of the hegemony of opinion given to the sovereign in Leviathan. But the Philosopher makes the relatively trivial point that heresy cannot be a crime without a positive law against it. Hobbes does not attribute great moral value to most theological disputes. This was a strand in Anglicanism since Hooker. However, Hobbes' view was more latitudinarian than that of most Anglicans. 491

Religious freedom may beended and, in fact, it ends only because - and in so far as - it threatens the secular power. So the situation changes when the temporal authority backs the spiritual one by legislating against the dissenters.This happened during the reign of Constantine the Great. In fact, at that point, Christianity became the state religion of the Roman Empire. 492 A Dialogue does not mention the persecution of the Christians by the previous emperors. The Philosopher states that Constantine was not motivated by "regard of Truth of Doctrine", but by what what was necessary "for the preserving of thePeace".493 As the new Emperor wanted to stop the many disputes about the nature of Christ created by Arius, causing disorders particularly in Egypt, he made the Church call the general council ofNicaea. 494 As a result, in that council and in the three general ones following, the bishops determined the fundamental dogmas of faith as contained in the Nicene Creed. Any statement contradicting these decisions became heresy. The Emperor promised to prosecute all those propagating different views. The Philosopher points out that only as a result of this promise heresy became a crime. 495 Accordingly, Constantine banned Arius and dispossed him of his benefice. However, he pardoned the old priest after having obtained his submission. But, eventually, the punishment for heresy became death, although in the Roman Empire the prefect of each jurisdiction still decided both the type of execution and whether or not to administer it. The situation changed again many centuries later. After the death of Frederick Barbarossa, the Pope, having increased his power, imposed the custom of burning the heretics and the apostates. In addition to this, several other statements that were not against the Nicene Creed became heresy. Nevertheless, the first record in England of punishment by burning applied against the heretics concerns the Lollards. 496 The Philosopher remarks that

491 About the relation between Hobbes and the Anglicans, see: Richard Tuck, "Hobbes and Locke on Toleratio;Thomas Hobbes and Political Theory, Edited by Mary G. Dietz (Lawrence KS, University Press of Kansas, 1990), pp.153-171, pp. 162-163.492 Costantine declared Christianity a legal religion in A.D.313.493 See, A Dialogue, p. 127.494 Emperor Constantine presided over the Council of Nicaea in A.D.325.495 See, Ibidem, p. 126.496 John Wycliff (1320-1384) founded this movement. His ideas, which abroad influenced Hus and Luther, spread inEngland especially among the learned men. In 1395, during the reign of Richard II, the Lollards petitioned the Parliament to accept their twelve theses. They rejected transubstantiation, celibacy for priests, auricular confession, praying for the dead, blessing inanimate objects, the cult of Saints and relics, venerating of images, pilgrimages, selling of indulgences, the pomp and secular office of clergy, luxury and war. See: A.R. Myers, England in the Late Middle Ages (Harmondsworth, Middlesex, Penguin Books, 1988), pp.84-86,90,165-167;George H. Sabine, Thomas Thorson, A History of Political Theory, Fourth Edition (Hinsdale, Illinois, Dryden Press, Tokyo, Holt-Saunders

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they were trying to assert principles which the Protestant Reformation and Anglicanism proposed again more than a century later. Henry IV, after having obliged Richard II to abdicate, needed papal support to consolidate power. 497 Consequently, to please Rome, he outlawed the followers of Wycliff and sent most of them to the stake as heretics. So the Statute 2 Henry IVc.15 defines heresy as the diffusion of a doctrine contrary to the teaching of the Holy Church, which at that time was Roman Catholic.498 The Philosopher considers this to be the only definition in English jurisprudence. The law states that the local bishop, without calling a council, can ban the heretics and make the secular authority prosecute them. Hobbes considers the decision unwise in giving in to the pretences of the Pope. 499 Moreover, the Philosopher says that all other statutes against heresy refer to "when the Popes Usurped Authority was here obeyed", i.e. when sovereignty lay not entirely with the king. 500 The Lawyer mentions all the other laws enforced ever since. The first one was made by King Henry V.501 This king decided to forfeit ail the properties of the heretics to the use of himself. 502 Henry VUI confirmed all these penalties. 503

Nevertheless, after the Act of Supremacy, he regarded the offences against the Catholic Church no longer a crime. 504 The next to make changes was Edward VI. 505

He abolished the previous legislation and restored the freedom of expressing individual opinions. 506 The Catholic Queen Mary, during her short reign, reimposed the heresy laws against non-Catholics, 507 but Elisabeth I repealed them again. 508

Eventually, urged by the Protestant clergy, she entrusted the High Commission to determine what was heresy according to the dictates of the first four councils. 509

Hobbes implies that the Queen, to avoid new doctrinal disputes, prevented that body from reaching any conclusion. As a result, no court could convict anyone for heresy since the competent authority did not define the crime and the relevant punishment.

Three connected conclusions result from this section:

International Editions, 1973), pp.294-296.497 Henry IV reigned from 1399 to 1413, his right to the crown was much disputed. Many magnates regarded the way in which he became king as illegitimate because it was derived from conquest. See: Sir Matthew Hale, The History of the Common Law of England, Edited and with an Introduction by Charles M. Gray (Chicago, University of Chicago Press, 1971), p.48; John Gillingham and Ralph A. Griffiths, The Oxford History of Britain, Edited by Kenneth O. Morgan (Oxford, University Press, 1992), p. 102.498 Parliament ratified this statute on the eleventh of March 1401.499 See, A Dialogue, p. 127500 Ibidem, p. 129.501 Henry V reigned from 1413 to 1422.502 Statute 2 Henry V, c.7.503 Henry VIII reigned from 1500 to 1547.504 Statute 25 Henry VIII c. 14.505 Edward VI reigned from 1547 to 1553.506 I Edw.VI c.12.507 Queen Mary reigned from 1554 to 1558.508 Elisabeth I reigned from 1558 to 1603.509 The High Commission was a Court of Royal Prerogative with a wide and indefinite jurisdiction over religious matters. The king, head of the Anglican Church, presided at its sessions. Such a judicial body played an important role during the Stuart Period. It supported the episcopalianism of Charles I and Laud in the struggle against the Puritans. For this reason the Long Parliament abolished it in 1647. See, J.P. Kenyon, Stuart England (Harmondsworth, Middlesex, Penguin Books, 1978), pp.122,132,137,147,199.

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(a) Since the spiritual authority is not independent of the civil power, the ecclesiastical hierarchy does not have the right to condemn anyone without the approval of the King. Otherwise, the Church could endanger the unity of the state;

(b) As Richard Tuck points out, the citizens are free to hold their opinions as long as compatible not so much with any religious doctrine, but with the public interest as judged by the sovereign. 510Hobbes endorses the enforcement of religious toleration by the king, in order to avoid any conflict which would divide the people, thereby endangering sovereignty itself; 511

(c) A Dialogue shows a lack of concern to clarify the technical questions involved in the judicial treatment of heresy. The Philosopher's discussion with the Lawyer concentrates rather on undermining the authority of precedent as such. This fact fits with the hypothesis that Hobbes in A Dialogue is more concerned philosophically with clarifying the role and nature of jurisprudence, than with excusing himself from the charges of heresy.

"Of Praemunire" (On Jurisdiction)

In this section, Hobbes analyses the ancient conflict between the English state and the Church. Since the thirteenth century, the kings had tried to curb the influence of the Vatican on the country. A Dialogue maintains that the Pope exercised some legal competence belonging to the sovereigns of England. 512 Many people sued in the Ecclesiastical Courts, disregarding secular justice. 513 They did not respect the division of jurisdiction between the spiritual and the temporal authority. Hobbes' historical reference to legislation begins with the statutes of Edward III. 514This king was the author of the Statute of Provisors. 515 In A Dialogue the Lawyer says that the sovereign with this new law took in hand the right to appoint bishops, supervise every charitable institution and grant all the benefices. 516 Edward III ordered also the forfeiture to the Crown's use of all the profits obtained from illicit nominations. In 1354 the same king approved the Statute of Premunire. This law gave more detailed instructions concerning how to punish the holders of abusive commissions and those suing in the Ecclesiastical courts on matters pertaining to the jurisdiction of the state. 517 The penalty was banishment. A Dialogue recalls also how Richard II confirmed and strengthened the previous legislation. 518 In fact, this king extended the same penalty, banishment, to every subject who approved the papal excommunication of bishops whom the king had appointed. 519 In this chapter, Hobbes tries to show that the laws concerning premunire never answered to the aim of defending common law from 510 See, Richard Tuck, Introduction to Leviathan (Cambridge, Cambridge University Press, 1991), pp.xxiii-xxvi.511 See also, Richard Tuck, "Hobbes and Locke on Toleration", pp. 166-170.512 See, A Dialogue, p. 132.513 See, Ibidem, p. 133.514 1327-1377.515 1351.516 See, Ibidem, p.133.517 See, Ibidem, p. 133.518 Richard II reigned from 1377 to 1399.519 16 Rich. II c. 5. (As it is written in A Dialogue.)

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royal prerogative in the English judicial system. In fact, this would be at odds with the rationality of law as the expression of the sovereign's will. Hobbes claims that the writ of premunire was only an instrument to defend the sovereignty of the King against the foreign interference of the Pope, and does not lawfully run against people who bring legal actions in Chancery.The general principles Hobbes applies to the question of jurisdiction highlight the overall nature of his study of the English legal system. A Dialogue vindicates the role of the king as the absolute ruler of England. It is to defend this power that the sovereign banishes the subjects who -by suing in foreign courts - undermine his authority. However, if only one supreme authority governs civil society, there is no reason to see the question of the competence of each court under English jurisdiction as a potential threat to sovereignty. On the contrary, it is denying the sovereign's freedom to make use of the judicial system that suits him best that undermines his powers. This means that Chancery as the expression of equity can amend - because of royal prerogative - any previous judgement made by a judge. This conforms to Hobbes' notion of rationality. And so, as a result, if the king decides otherwise he acts irrationally because he undermines his own sovereign power.

"Of Punishments" and "Of Pardoning" (The Enforcement of Law)

These pages discuss the problems involved in enforcing law. The Philosopher opens his speech by asking who has the power to assign the punishment for each crime. 520As Cropseyex plains, his purpose is to point out that there are no natural criteria for defining the proper penalty for every offence. 521 Supposedly, the assignement of punishments for crimes can only be another result of the sovereign's private reason that decides the conventions applied by civil society. The Lawyer objects that English people fear that the king may enforce a penal system that is excessively punitive. The rest of Hobbes' discussion tries to show how historically it is custom, not the sovereign, that the citizens must blame for excessive judicial harshness and unfair decisions. 522 Moreover, Coke and the common lawyers made things worst by denying the royal right to exercise mercy whenever necessary. 523 In regard to this, Hobbes also tries to show that there are no other viable institutional alternatives to the intervention of the king. Allegedly, Parliament's acts, unlike the sovereign's, are by their own nature controversial because they are open to too many different interpretations. Paradoxically, Hobbes regards royal arbitrary power as being more fair and benign source for the enforcement of law than the authority of prescription. There is nothing strange in this. In fact, the courts where equity was dispensed, and in particular the prerogative court of chancery, offered the only chance of escaping precedent, or inequitable statute, although they too were coming under the control of precedent. Hobbes is not describing a factual tendency about the operation of law in the seventeenth century, but he is making an a priori claim which also happens to be historically being realized. The Philosopher tries to show that the Institutes's definitions do not provide the rational criterion for the correct application of law. In fact, supposedly, only the sovereign himself can ensure that the judges enforce the rationality. Punishing the offenders means enforcing the will of the king, and nobody

520 See, Ibidem, p. 140521 See, Joseph Cropsey, Introduction to A Dialogue, p.39.522 See, A Dialogue, pp. 143-152.523 See, Ibidem, pp.l52-156.

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else can direct this better than the sovereign himself. Accordingly, the judges must always follow his commands.

Now I will evaluate Hobbes' statements about the enforcement of law. A Dialogue's argument consists of rather partisan considerations. Supposedly, the penalties which to most people seem too harsh are caused by Coke's misinterpretations. Only royal prerogative can correct all the unsatisfactory judgements causing such irrational punishments. So Hobbes assumes that the decisions of the king, as opposed to those of Parliament or of common lawyers, are by their own nature always clear and uncontroversial. This is not true only concerning the power of punishing, but also concerning the authority to pardon. Nevertheless, in regard to pardoning, the historical cases which A Dialogue considers as illustrating this principle actually show the converse. The Philosopher describes only one royal pardon made in England, the Statute 12 Charles LI c.2, i.e. the Act of Oblivion, according to which the participants in the war against the Stuarts were to obtain immunity. 524 This was anything but an autonomous initiative of the sovereign. 525 Furthermore, its applications, far from happening smoothly, caused dispute and resentment. This is supposed to be ahistorical example of clear and uncontroversial instructions given by the king to the judges! Here the Philosopher fails in his attempt to provide a convincing factual defence of Hobbes' position. However, his critical remarks about the shortcomings of Coke's views concerning the punishments of crimes are mostly correct, although this fact does not prove that the remedy against any anomalies in the English penal system is royal prerogative as the expression of absolute sovereignty.

"Of the Laws of Meum and Tuum" (A Dialogue's final pages: the Origin of Government, Property, and Parliament)

The closing pages of A Dialogue abruptly change topic. As Cropsey points out, it is not clear if they are intended as a separate section which a typographical error in the first edition fails to mark. 526 After speaking about the power of pardoning, Hobbes makes the Philosopher announce that the next topic is the laws of property. Nevertheless, the considerations that follow, although touching on this subject, also deal with more general aspects concerning the historical origin of sovereignty. There is no final synthesis of the points made or even a conclusion of the topic itself. The end of Hobbes' study of English laws is unexpected and bears the hallmark of something suddenly interrupted in the middle of a difficult line of reasoning. However, in these pages there are some interesting topics which, at the time, were of political relevance, for example the Philosopher's discussion of family, servitude and private property, the confutation of ancient constitutionalism, and the issue of borough franchises. Nevertheless, in this case, Hobbes himself does not always seem to see the full relevance, or make much, of his statements concerning these matters. Moreover, sometimes, he does not maintain a clear line in his reasoning and fails to

524 See, Ibidem, pp. 157-158.525 The Declaration of Breda, precisely called Act of Indemnity and Oblivion, came out on the 29th of August 1660. It represented an essential part of the arrangements for the Restoration. However, such a law, issued by Charles II, set out more general terms, limited by parliamentary approval, than what the actual parliament proved prepared to agree to. See: J.P. Kenyon, Stuart England, p. 197; George Macaulay Trevelyan, England Under The Stuarts (London, Methuen and Co. 1904,22nd edition, 1954), pp.276-278.526 See, Joseph Cropsey, Introduction to A Dialogue, p.42.

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follow through important issues when they arise. In spite of this, Hobbes' most important aim is to confute the ancient constitutionalism employed by Parliament and common lawyers to oppose the royal absolutism advocated by the Philosopher.

The final part of A Dialogue discusses the following topics, in this order:

(a)The formation of government and property in general;

(b) Monarchy as the first, and as the best form of government;

(c) The natural and the political power of the sovereign;

(d) The specific establishment of land ownership in England;

(e) The Saxon origin of English monarchy and Parliament.

These are matters which Hobbes had, for the most part, already dealt with in previous works. But in A Dialogue, such topics result from Hobbes' attempt - by using rational arguments - to give amore precise historical and juridical basis to his positions. This basis put together, as complete, would have made his political arguments even more detailed and convincing than before. According to A Dialogue, the government historically derives from an extension of the obedience which each member of a family must give by contract to the father, or in some cases to the mother. Monarchy is the first and the most natural constitutional system. In fact, only under the rule of a king can there be a full conformity between the natural power that the sovereign possesses as a private person and the legal prerogatives formally attributed to him as a political authority by the people. The example of William the Conqueror illustrates this, especially through the way in which he distributed property. Allegedly, what William assigned to some people in his private capacity, out of conquest, becomes the juridical origin of the present land ownership. Obviously, here A Dialogue specifically refers to feudal property. In other words, when certain subjects claimtheir manorial right of possession over land, they must also acknowledge the legitimacy of William's decisions and give political consent to these decisions. This is an important issue; for together with justifying the king's right to levy a tax on properties, it also justifies the specific duty of allegiance to the existing sovereign of all the owners of land. But Hobbes goes even further back in time. Indeed, he sees the historical origin of the sovereign's allodial property rights over England in the domains acquired by the Saxons kings. Supposedly, the customs of these people also confirms royal absolutism and - at the same time - the existence of Parliament as an instrument of the king. This undermines Parlamentarian ancient constitutionalism. Accordingly, the Philosopher criticizes the way the common lawyers have interpreted the traditions concerning the subjects' rights of property, and concerning the status of Parliament. He also suggests that these misinterpretations have taken place with the sovereign's acceptance. A Dialogue also criticizes the structure of the constituencies of the Commons. This type of underlying accusation looks rather familiar. For Hobbes, the criteria by which elections are held reflect ancient usages instead of the rationality of the king's will. However, this necessarily also implies Hobbes' disapproval of the sovereign who accepts such unsatisfactory situations. As a result, Hobbes must also object to some of the existing laws.

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Now I will evaluate the final arguments of A Dialogue. As Pocock points out, Hobbes is unsuccessful at showing how the content of the sovereign decisions could be justified by the same reason as that which demonstrated the need for sovereign authority, which was arguably the main aim of A Dialogue? 527 This means that he is contradicting his self-declared purpose, i.e. always to defend the legislation, and never to argue against it. Indeed, to suggest that the individuals have to be rationally satisfied only of the need for the authority of the sovereign, and not also of the rational content of his specific decisions, it is a partial withdrawal from reason and also something more difficult to convince the people to accept. 528 Hobbes cannot really complete what he has set himself to do, perhaps it was impossible.

Review of Hobbes' Philosophical Enterprise in his Dialogue of the Common Laws

In A Dialogue Hobbes seeks to make the study of law rational. This for the Philosopher means that jurisprudence must explain the relation between juridical rule and what is rational. A Dialogue maintains that the legal reason embodied by the English juridical system depends on the king, and that it does not depend on the wisdom of custom, nor on the authority of Parliament, as maintained by the common lawyers. In fact, the power to legislate always belong to the sovereign, which in England is the king. Moreover, for Hobbes, having control over the application of law must always be annexed to the legislative power. According to A Dialogue, notwithstanding them is interpretations caused by Coke, the structure and the organization of the English courts confirm the supreme judicial authority of the king. The Philosopher argues that history shows that this has always been true. The period of the civil wars, and the interference of the Papacy, being the only exceptions.According to the same principle - i.e. royal judicial omnicompetence - only the king can establish the nature and the definition of each crime. However, an act endangering the sovereign power is always a capital offence per se; in fact, it endangers the commonwealth which protects the lives of the citizens. But the king has always the right to punish or to pardon any offender. For A Dialogue, high treason and all felonies denote actions that in themselves endanger the lives of the citizens, and therefore go against the purpose of sovereignty. Individuals accept life under the rule of a sovereign in order to maintain their safety. This means that any attempt to kill or to harm the king is always high treason, and a crime, per se. In other cases it is up to the sovereign to specify which particular actions must be considered as high treason, as felonies, or as other offences. Hobbes considers high treason, and also any felony, as a malum in se, and as a crime before the making of any statute. Such a reasoning offers the Philosopher the opportunity to point out the difference between these types of crimes and the offences which occur only because of the existence of a specific law making illegal something that otherwise would not be forbidden. This was once the case for heresy, which in itself causes no threat to the political authority, and, therefore, is not a malum in se, as it simply means that one follows the opinions of some people which are rejected by others. Nevertheless, for Hobbes, heresy is not any longer a crime. In fact, according to A Dialogue, the law making it an offence was repealed under Edward VI, reimposed under the Catholic Queen Mary, and abolished again by Elizabeth I.527 See, J.G.A. Pocock, "A discourse of sovereignty: observations on the work in progress", Political discourse early modern Britain, pp.377-428, p.398.528 See, Ibidem, pp.397-398.

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The same purpose of vindicating the authority of the king over the English judicial system characterizes also A Dialogue's consideration of the problem of jurisdiction. For Hobbes, there are no rational or legal bases justifying the existence of any jurisdictional conflict within the courts of England. Moreover, the rationality of law as the command of the sovereign requires royal prerogative - of which Chancery is the main expression - to have the power to amend the judgements made by all the courts of the Kingdom. This is also the way to correct the excessive vindictiveness of the English penal system. According to the Philosopher, the common lawyers endorse the application of punishments which are too harsh because, instead of obeying directly the commands of the sovereign, they follow Coke's misinterpretations of the statutes.Hobbes wants to show that his conception of the sovereign power derives not only from the application of reason to the understanding of the English legal system, but that it is also confirmed by history. For this reason, the Philosopher tries to justify his case in favour of absolute monarchy as the best form of government by looking into the historical origins of sovereignty. Supposedly, the formation of the sovereign power shows how royal absolutism conforms not only to the most rational, but also to the most ancient way of ruling the people. In fact, the absolute right of the existing king to rule England corresponds to the absolute power exercised among the ancient Saxons by the sovereign lords of the families. The Philosopher makes use of this historical argument in order to sustain the juridical positions about the nature of sovereignty, which should always be absolute and unitary, that Hobbes had expressed in his previous works.Every statement made throughout A Dialogue confirms Leviathan's conception of law as the will of the sovereign. The Philosopher gives rational, juridical, and historical arguments in favour of his interpretation of the English legal system as the embodiment of the absolute sovereignty of the kings. If the statutes by expressing the royal commands answer to what is reasonable, A Dialogue's method for understanding their nature, and their origin, should also provide the criteria for studying them rationally. In other words, according to Hobbes' formal notion of reason, the fact that each juridical rule is, or is supposed to be the rational command of the king makes it rationally understandable by everybody. Indeed, for the Philosopher, making the study of law rational, and understanding the will of the sovereign mean the same thing. Furthermore, in A Dialogue, Hobbes' attempt to do these two things together answers to the same purpose that is to advocate absolute monarchy.

Moving now from description to evaluation, it can be argued that in A Dialogue Hobbes seems to make some dubious points. For instance, as Cropsey points out, since he has alienated the clergy, one problem he cannot solve is who must indoctrinate the people to obey the sovereign. 529 If Hobbes is setting himself for this task, the situation does not look favourable to him given the widespread criticism with which his mainly secular case in favour of absolute sovereignty has been met, confirmed by the fact that, in spite of the impressive array of Biblical arguments which he displayed in favour of it in Leviathan, this work was itself under investigation before the House of Commons as a blasphemous writing. Furthermore, Hobbes cannot really avoid contradicting himself, or at least undermining the coherence of his argument. His purpose in vindicating and showing the rationality of law was intended as a defense of the dictates contained in the statutes against the misinterpretations of the common lawyers. Nevertheless, the Philosopher sometimes 529 See, Joseph Cropsey, Introduction to A Dialogue, pp. 18-19.

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disagrees even with statutary distinctions, and consequently advocates the intervention of the sovereign to correct these laws. But his argument relies on common sense and on a substantive notion of rationality to which, implicitly, the sovereign must conform, more than on the correct analysis of how the judicial system actually deals with such problems, i.e. he does not discuss in detail any precise example of an amendment to a law made by the king. There can be a tension, or even some contradiction, between the actual exercise of sovereignty and Hobbes' notion of what is rational.This tension is exemplified, for instance, by what Hobbes says about the Statute of Premunire. We are told that this statute punishes, or rather should rationally do so, only attempts to introduce foreign interference in the country. But Coke disagrees so the Philosopher tries to undermine the credibility of his opponent by showing how Institutes wrongly renders also many other actions as criminal. This happens, for instance, when the jurist places among the criminal actions types of behaviour that at most fall short of virtue: (a) costly apparel, costly diet, and costly building; (b) flattery of the king. 530 However, A Dialogue's refusal to consider these actions as criminal does not have any foundation in the study of the relevant laws. This adds no credibility to Hobbes' views claiming the laws of premunire to be only a defence of the king's authority against foreign interferences, and not to be also an instrument for the defence of the jurisdiction of common law against royal prerogative itself, in its various judicial expressions such as canon law and equity.

530 See, Ibidem, p. 139

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CHAPTER IV

A DIALOGUE AND HOBBES' CONCEPTION OF REASON AND ITS RELATIONSHIP TO SCIENCE

Presentation of the argument

The purpose of chapter four of my thesis is to develop a further elaboration of the intentions of Hobbes in the light of the previous exegesis of A Dialogue. To this end, I will undertake a theoretical analysis of the most important philosophical features of his conception of law in relation to science, and then, in the next chapter, to history. My claim is that A Dialogue represents the culmination of Hobbes' science of politics.

However, before examining these features of Hobbes' scientific enterprise, it is necessary to make a short digression in order to expound the unity of Hobbes' philosophical system, answering to the objection that his jurisprudence, rather than articulating a specification of his natural philosophy, makes a sharp break from the materialism of that doctrine by being based on a moral imperative.

Hobbes' natural philosophy and his jurisprudence

In order to understand A Dialogue's place in Hobbes' theoretical framework, we must ask this question: does Hobbes see any continuity between his natural philosophy and his legal theory? I shall argue that he does. However, some of Hobbes' critics do not think that his notion of the mechanical universe leads logically to his explanation of the formation of society and the rules governing men's conduct. Indeed, Croom Robertson is the first among these critics to point out that Hobbes' attempt to connect philosophical materialism to a contractual theory "puts together what originally had different bases".531 Leo Strauss develops the same thesis, arguing that Hobbes has formed his political ideas before becoming a philosopher. He also believes that Leviathan's principles alone give rise to modern liberal thinking, namely the point that natural right, rather than natural law is the origin of civil society.532 This point about natural right and Strauss' position in general, has deeply influenced professor Joseph Cropsey who, as he has kindly confirmed in the previously mentioned letter, considers A Dialogue as an avatar of liberalism. 533

However, these critics underestimate the role of Hobbes' materialistic philosophy in establishing his political theory and formulating his jurisprudence as science. For Hobbes the natural laws are both precepts of reason and moral duties. Natural laws are moral duties in that the latter, being statements of conditional morality, are based on hypothetical imperatives. 534 Leviathan says:

531 See, Croom Robertson, Hobbes (London, Blackwood and Sons, 1886), chap.vi, p. 138.532 See, Leo Strauss, The Political Philosophy of Hobbes, Its Basis and Genesis, Translated from German by Elsa M. Sinclair (Oxford, Clarendon Press, 1936), passim, chap. viii, pp. 129 ff.533 See, Joseph Cropsey, Introduction to A Dialogue, pp.9,18,48.534 See, Iain Hampsher-Monk, A History Of Modem Political Thought (Oxford, Blackwell, 1992), p. 59.

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The Lawes of Nature oblige in foro interno; that is to say they bind to a desire they should take place: but in foro externa; that sis, to the putting them in act, not alwayes. 535

Leviathan's notion of conditional, non-substantive, and universal morality recalls Hobbes formal concept of rationality. For Hobbes, reason is concerned with measuring the consequences of names "for the marking and signifying of our thoughts". While thoughts are subject to the senses, the senses are in turn subject to the motions in the physical world. 536

Morality and science share the same deuctive properties in that the conclusions of both depend on the axioms. 537 However, Hobbes does not make this point unequivocally. This we see in his account for the origin of civil society.What I have said so far seems to suggest that Hobbes explains men's social behaviour by means of natural laws - the laws that give rise to both the jus and the lex. Nevertheless, for Hobbes natural laws are not descriptive scientific laws, but are contingent prescriptive rules. On the other hand, Hobbes maintains that positive laws must always regulate human relations. From the intersection and the confluence of prescriptive rules and positive laws originates the artificial order that constitutes civil society. 538

But how does Hobbes relate the conventional rules of science to the artificial rules of society? He considers positive laws as the juridical expression of natural laws through civil society. 539 And how does Hobbes connect the natural laws with his materialistic physics and physiology? He sees the connection in vital motions that bridge the world of matter and the world of psyche. Men's passion for self-preservation, for example, is but an urge to protect our vital motions. Here, the laws of nature come into play. Leviathan states:

The Passions that encline men to Peace, are Feare of Death, Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them. And Reason suggesteth convenient Articles of Peace, upon which men may be drawn to agreement. These Articles, are they, which otherwise are called the Laws of Nature... 540

It seems that the laws of nature continually optimize inertial motion in our internal organs. And as some scholars point out, according to Leviathan's principles we are biologically determined to always pursue an increase in our vital motion. 541

This Motion, which is called Appetite, and for the apparence of it Delight, and Pleasure, seemeth to be, a corroboration of Vital motion, and a help thereunto; and therefore such things as caused Delight, were not improperly called Jucunda (a Juvando,) from helping or fortifying; and the contrary, Molesta, Offensive, from hindering, and troubling the motion vitall. 542

535 Leviathan, Part I, chap. 15, p. 215.536 See, Ibidem, chap.5, p.l 11; chap.3, p.99.537 See, Iain Hampsher-Monk, A History Of Modern Political Thought, p.60.538 See, Leviathan, Part II, chap.26, pp.314-315539 See, Ibidem, Part III, chap.42, pp.545-547.540 Ibidem, Part I, chap.13, p.188.541 See, for example, Jean Hampton, Hobbes and The Social Contract Tradition (Cambridge, Universty Press, 1986), p.38.542 See, Leviathan, Part I, chap 6, pp.121-122.

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In psychological terms, this means men desire to maximize pleasure and to minimize pain. Even the "true martyrs", i.e., the witnesses of the resurrection of Jesus, or the "second Martyrs, or Martyrs of Christ Witnesses", seek eternal life in heaven. 543 A Dialogue sustains the same view. Accordingly, the Philosopher states that suicide is possible only to avoid an unbearable pain.

For naturally, and necessarily the Intention of every Man aime that somewhat, which is good to himself, and tendeth ro his preservation: And therefore, methinks, if he kill himself, it is to be presumed that he is not compos mentis, but by some inward Torment or Apprehension of somewhat worse than Death, Distracted. 544

If suicide follows an "Inward Torment" that is "worse than death" then the self- destruction can be rational, according to Hobbes' physical psychology, and denial of self- preservation can be natural, according to his psychological physics. Therefore, Hobbes’ formulation of a theory combining the natural and the behavioral is plausible, althoughhis critics, notably Taylor and Warrender, do not think so. Taylor and Warrender disagree because they claim that while the system of natural motions and motives is geared to the supreme principle of self-preservation, the system of moral obligations is geared ultimately to the need to obey natural law as the will of God. 545 However, they overlook the fact that Hobbes does not seem to have been sensitive at all to the distinction between prudential and moral motivation. 546

As Maurice Goldsmith points out, Hobbes does not shift basis in his analyses of either the natural or the behavioral; 547 his notion of law refers to physics as well as to jurisprudence. Men approach science not for its own sake but use it as a means to improve their conditions, which is also the goal of politics. Leviathan summarizes Hobbes' position this way:

To conclude, the Light of humane minds is Perspicuous Words,[22] but by exact definitions first snuffed, and purged from ambiguity; Reason is the pace; Encrease of Science, the way; and the Benefit of mankind, the end. 548

Now we come to two notions closely connected to civil society, namely, civil law and the state - and indeed, for Hobbes, civil society and the state which he also calls commonwealth, coincide. Throughout the history of the state, civil law coordinates human relationships. Although everything results from conventions, there is a basic difference between the state and the natural bodies. The latter are organic or inorganic objects while the former is an artificial construct. The state exists on the consent of the citizens expressed through the social contract. 549 So Hobbes at the beginning of De Corpore when making a general introduction to his philosophical system, states:

543 See, Ibidem, Part III, chap.42, pp.529-530.544 A Dialogue, pp. 116-117.545 See: A.E. Taylor, "The Ethical doctrine of Hobbes" in Hobbes Studies, Edited by Keith C. Brown(Cambridge Mass., Harvard University Press, 1965), pp.35-55; Howard Warrender, The PoliticalPhilosophy of Hobbes: His Theory of Obligation (Oxford, Clarendon Press, 1957), pp.viii-ix, 1-2,8-11.546 See, Tom Sorell, Hobbes, (London, Routledge, 1986), p. 105547 See, Maurice M. Goldsmith, Hobbes's Science of Politics, for instance: pp.228, 242.548 Leviathan, Part I, chap.5, p.l 16.549 See, Ibidem, Introduction, p.81; also Part II, chap. 17, p.226.

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For two chief kinds of bodies, and very different from one another, offer themselves to such as search after their generation and properties; one whereof being the work of nature, is called a natural body, the other is called a commonwealth, and is made by the wills and agreement of men. And from these spring the two parts of philosophy, called natural and civil. 550

But this passage leaves open the question of how can the commonwealth, which is an artificial construct, be explained in terms of physics, which deals with the objects of nature? To answer this, we have to examine Hobbes' conception of the compact of the government. For Hobbes, the laws of nature are not properly laws but counsel of reason, 551 and through the compact of the government laws of nature are rendered laws proper by the sovereign, the word of him that has the right of command. 552 The sovereign is vested with this authority because of the pact whereby individuals relinquish their rights, and agree to live under the protection of a government. The Elements of Law states:

And consequently, whatsoever is a law to a man, respecteth the will of another, and the declaration thereof. But a covenant is the declaration of a man's own will. 553

In discussing Leviathan's natural and political philosophy, critics like Warrender tend to deny that a systematic unity exists between the two. 554 They argue that the natural involves mechanical principles while the political requires moral obligation. In other words, the natural world depends on its own laws while the political world is the product of man's will. But Hobbes shuns this distinction. David Gauthier says:

Hobbes' methodological mechanism presupposes the essential similarity of physics and politics. Both are sciences which explain phenomena in terms of consequential relationships, which Hobbes seems to have taken indifferently as causal connections or logical entailments. The political scientist enables us to understand Commonwealth, to know its constituent causes, and so - for knowledge is power - to enable men to erect a Commonwealth should its causes be in their control. 555

My understanding of Hobbes inclines me to agree with these statements of Gauthier regarding the relation between natural and political science. As well as I can perceive Hobbes' meaning, he intends to assimilate the political science precisely and thoroughly to the understanding of nature, since nature is inseparable from the necessity that no human contrivance or belief can transcend. 556 It is our peculiar fate that nature 'intends' our preservation but requires our collaboration in the task of

550 See, De Corpore, The English Works of Thomas Hobbes of Malmesbury, Vol.1, Part I, chap.I, p.ii.551 See, Leviathan, Part I, chap. 13, p.188.552 See, Ibidem, Part II, chap.26, pp.312-314.553 The Elements Of Law, Edited by Ferdinand Tonnies. Second Edition (London, Frank Cass & Co.Ltd., 1969), Part 2, chap. 10, p. 185.554 See, Howard Warrender, The Political Philosophy of Hobbes, pp.1-2,8-11.555 David P. Gauthier, The Logic Of Leviathan, The Moral and Political Theory of Thomas Hobbes (Oxford, Clarendon Press, 1969), pp.3-4.556 See, Maurice M. Goldsmith, Hobbes's Science of Politics, p.xiii.

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achieving nature's purpose for us: in the state of mere nature, our preservation is not supported. 557 Only by investigating nature's end for us, and intelligently perceiving our own natural modes of behavior, can we devise the conventions (i.e., political order) that bring into existence the best political order - the one that achieves nature's end. 558 This is, in other words, to achieve the conquest of nature in the only sense that really makes sense - conquest indistinguishable from absolute obedience, as Hobbes' master, Francis Bacon, prescribed. 559 That is to say, only by knowing and following how nature works it is possible to make the best use of it in order to achieve our own good. I suspect that this is the ground on which the question of the relation between jurisprudence and physics is to be answered. 560 Hobbes stresses that men use the same faculty - reason - to interpret everything. Their interpretations start from the perspective of benefit. Such a utilitarian purpose permeates all human knowledge and directs all his actions. This view is expressed in the clearest way by De Corpore:

The end or scope of philosophy is, that we may make use to our benefit of effects formerly seen; or that, by application of bodies to one another, we may produce the like effects of those we conceive in our mind, as far forth as matter, strength, and industry, will permit, for the commodity of human life.561

Knowledge of the laws of physics allows men to produce effects conducive to human survival. Similarly, Dictates of the Law of Reason enables men to make statutory laws favorable to the preservation of society. In A Dialogue, in one of his "enlightened" statements, the Lawyer says:

It is also a Dictate of the Law of Reason, that Statute Laws, are a necessary means of the safety and well being of Man in the present World, and are to be Obeyed by all Subjects, as the Law of Reason ought to be Obeyed, both by King and Subjects, because it is the Law of God. 562

Must the very concept of statutory law indicate conventional rules? Is there a distinction between what we construct and what we find? Or in short, how is jurisprudence similar to physics? These fundamental objections raised by Hobbes' critics remained unanswered. Although Hobbes does not directly answer these questions, we can answer them by drawing out the implications of his thought. According to Hobbes' model of science we never "find". Rather we must always "construct". Therefore, as he explains in De Homine, physics is conventional because, and in so far as it depends on arbitrary definitions:

557 See: Leviathan, Part I, chap. 13; A Dialogue, p. 159.558 See: Leviathan, Part II, chap.26, p.314.559 See, Francis Bacon, The Advancement of Learning, 2, Works, Vol.III, Edited by James Spedding,Robert Leslie Ellis, and Douglas Denon Heath, 14 Vols., (A) Vols. I-VII (London, Longmans, 1857-1861), pp.348-349.560 Indeed, Bacon declared to King James in 1603: "There is a great affinity and consent between therules of nature, and the true rules of policy." Letters, Vol.III, Edited by James Spudding, (B) Vols.IVII(London, Longmans, 1861-1874), pp.90-91.561 De Corpore, Part I, chap.I, 6, p.7.562 A Dialogue, p.58.

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....nothing can be demonstrated by physics without something also being demonstrated a priori. Therefore physics (I mean true physics), that depends on geometry, is usually numbered among the mixed mathematics. For those sciences are usually called mathematical that are learned not from use and experience, but from teachers and rules. Therefore those mathematics are pure which (like geometry and arithmetic) revolve around quantities in the abstract so that work in the subject requires no knowledge of fact; those mathematics are mixed, in truth, which in their reasoning also consider any quality of the subject, as is the case with astronomy, music, physics, and the parts of physics that can vary on account of the variety of species and parts of the universe. Finally, politics and ethics (that is the sciences of just and unjust, of equity and inequity) can be demonstrated a priori because ourselves make the principles - that is, the causes of justice (namely laws and covenants) - whereby it is known what justice and equity, and their opposites injustice and inequity, are. For before covenants and laws were drawn up, neither justice nor injustice, neither public good nor public evil, was natural among men any more than it was among beasts. 563

This passage must be understood in view of the fact that, for Hobbes, science, like Commonwealths, is the product of artifice, not of observation, being allowed "only of those things whose generation depends on the will of men themselves." 564 No natural scientist of the period believed that science "penetrates essences". The hypothetical characteristic of Hobbes' science is just one version of this position - of which Baconian empiricism is another. At any rate, Hobbes thinks that natural science interprets reality through a model of deduction and causality. By assuming that "nature it self cannot erre", Hobbes hypothetically postulates the existence of an underlying mathematical order in the universe, the same which Descartes believed in.565 Yet Hobbes maintains that this order is not readily apparent to the senses, but is established by definitions and demonstrations of geometry, "the only Science that it hath pleased God hitherto to bestow on mankind." 566 In this way, he advocates two different principles: (a) epistemological conventionalism; (b)the idea that science through geometry states universal and necessary, perhaps "essential" relations. Although epistemological conventionalism seems to prevail over the idea that science states universal and necessary relations, Hobbes does not really explain how the two principles can coexist.In view of what I have said so far, it would appear to be obvious that from our own perspective as modern readers there seems to be a lot of room for a critique of Hobbes' model of science. This perspective itself, however, must be treated with caution. It is difficult for us, and perhaps misleading, to evaluate Hobbes' views on the nature of science from the point of view of, in Wittgenstein's terms, our own language-game. 567 For Hobbes, certainty is a function of convention, and knowledge

563 De Homine, in Man and Citizen, [Selections from] Thomas Hobbes' De Homine, translated by Charles T. Wood, T.S.K. Scott-Craig, and Bernard Gert (Gloucester Mass., Peter Smith, 1978),chap. X, 5, pp. 42-43.564 Ibidem, chap.X, 4, p. 41.565 Leviathan, Part I, chap. 4, p. 106.566 See: Richard Peters, Hobbes (London, Penguin Books, 1956), pp.56-57; also Leviathan, Part I,chap. 4, p. 105.

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is certain insofar as it is constructed and uses secure and well defined conventions. 568

So in his own language-game, but not in ours, Hobbes can be at the same time a rationalist and a conventionalist without any inconsistency. 569 However, this position looks problematic for us because in our culture, but not necessarily in the one of Hobbes, the concern to uncover and display the conventional bases of knowledge, like what Wittgenstein does, is taken as a denial that knowledge is ultimately vouched for not by human agency but by reality itself. 570 In Hobbes this tension between what we construct and what we find characterizes the relationship between natural and civil philosophy, but it is also internal to both, and it does not affect the fact that both require something being demonstrated a priori in a way that answers to Hobbes' own version of scientific determinism, which explains phenomena in terms of consequential relations and seek to reproduce them for utilitarian purposes. So according to Maurice Goldsmith, Hobbes not without some ambiguity, assimilates politics to his mechanistic-materialist doctrine of the physical world. 571 This view about Hobbes, adopted by many other scholars like Gauthier, Hampsher-Monk, Hampton, McNeilly, etc., seems to locate Hobbes' orientation correctly. Civil philosophy is about statecraft, and jurisprudence should assist in the purpose of ruling the country with the ultimate aim of benefiting mankind. Because Hobbes believes that knowledge should have practical purposes, he shows the lawyers how to consider civil law. In A Dialogue, the Philosopher clarifies the fundamental principle of interpreting the statutes:

But I did not much examine which of them was more, or less rational; because I read them not to dispute, but to obey them, and saw in all of them sufficient reason for my obedience, and that the same reason, though the Statutes themselves were chang'd, remained constant. 572

We owe unconditional obedience to the sovereign and to the laws he makes. This is the sole criterion from which the notion of legality comes.In sum, I think Maurice Goldsmith correctly interprets Hobbes' writings by locating this thinker's jurisprudence in his own philosophical method. We have seen that Leviathan considers the laws of nature as rules for optimizing inertial motion in our internal organs to ensure self-preservation. And science, of which politics and jurisprudence is a part, should not achieve a purpose other than the well-being of man. Thus, A Dialogue teaches that the study of law contributes to the perpetuation of the individuals because, by understanding the nature of jurisprudence they know how to obey the sovereign preventing civil war and achieving salus populi.

A Dialogue and Hobbes' science

What Hobbes does in A Dialogue is directly related to his account of science. Indeed, he makes the Philosopher argue that Leviathan's concept of "reason" on which Hobbes' science of politics is based, indicates the correct, i.e. the scientific, method for interpreting and applying the will of the sovereign, that is to say for jurisprudence 567 See, Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life (Princeton, Princeton University Press, 1985), chap.II, p.22.568 See, Ibidem, chap.IV, p. 150.569 See, Ibidem.570 See, Ibidem, chap.II, p.23.571 See, Maurice M. Goldsmith, Hobbes's Science of Politics, passim, for example: pp.228,242.572 See, A Dialogue, p.54.

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as a science. By doing so Hobbes wants to establish jurisprudence, not the art of making the laws, as a science. He does not want the science of law above the sovereign's will, something regarded as desirable, i.e. a desideratum or a value, as in Greek thought and in Republican Age Rome. A Dialogue does not argue like Plato's The Republic in favour of a "Philosopher Ruler". According to Hobbes, civil philosophy and its culmination: jurisprudence, is the science which makes, or helps to make the individuals obey the will of the sovereign. Hobbes does not want a scientific method binding the ruler's decisions. So Hobbes began A Dialogue by arguing that the rationality of law did not depend on the time-honoured wisdom embodied in the authority of custom, but on the private "reason" of the English sovereigns. The Philosopher understands the rationality of law as a formal characteristic of "explicit" norms that exist only because explicitly made so in order to become juridical rules; this leads to legal positivism. All this answers to the intention of vindicating Leviathan's positions.So Hobbes' considerations in A Dialogue about the nature of "reason" applied to jurisprudence are congruent with what is stated in Leviathan. A Dialogue rejects the common law notion of reason according to which there is a presupposition that there are reasonable grounds for precedent and local tradition even when these are not apparent. For example, Hobbes considers the rigorous proceedings required by common law incases of treason as traditions typical of English jurisprudence. A grand jury sets the case indicting the defendant, a petty one judges guilt/innocence. Then, if convicted, the miscreant will face a particularly elaborate execution. According to Hobbes, such a procedure is not a dictate directly deducible from the formal nature of reason, but one of the many possible specifications of natural law; it is a rule only through the approval of the sovereign, even though the people sentenced to the death penalty are no longer bound by the social contract because "no man is supposed bound by Covenant, not to resist violence".573 A Dialogue rejects Coke's assumption that the sovereign must respect the common custom of the country, that is, the law as it is recognized in the courts of the kingdom of England, and asserts the right of the king to kill or to pardon arbitrarily.

In Leviathan Hobbes makes "Reason" derive from the "apt imposition of names" and from the analytical-synthetical method of computing and extrapolating the logical properties of those names:

For REASON, in this sense, is nothing but Reckoning (that is, Adding and Substracting) of the Consequences of general names agreed upon, for the marking and signifying of our thoughts; I say marking them, when we reckon by ourselves; and signifying, when we demonstrate, or approve our reckonings to other men. 574

In A Dialogue the Philosopher argues in favour of this notion of juridical reason. He denies the existence of that "Artificial perfection of Reason gotten by long Study, Observation, and Experience" which Coke considers to be the common law. 575

Hobbes rejects the scholastic version of Aristotelian philosophy which "drew a

573 Leviathan, Part II, chap.28, p.353.

574 Ibidem, Part I, chap.5, p. 111.575 A Dialogue, p.61.

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distinction between theoretical and practical reason".576 One is "episteme" - the knowledge of the universal and eternal truths, the other is "phronesis" - prudence, or common sense applied to human affairs. 577 A Dialogue denies the common lawyers' claim to possess a superior quality of practical reason which qualifies them better than the other men for the exercise of the legal profession. 578 This claim was based on Aristotle's argument that "Prudence or practical wisdom", i.e. phronesis, is "susceptible of reason".579 For Hobbes' Philosopher, as for Descartes, on the contrary "reason" is a singular faculty equally distributed amongst men:

...for you are to allow to me, as well as to other Men, my pretence to Reason... 580

In this way, the statements of Coke are not based, as he claims, on the "Artificial perfection of Reason", but on "prudence" which has no authoritative scientific status for Hobbes. So his Philosopher rejects any radical distinction between common sense and a specific art, claiming to be the main source of legality possessed by the jurists. Their superior knowledge does not represent the ultimate warrant of law. "It is not Wisdom, but Authority that makes a Law." 581

The Philosopher's objections to The Institutes are congruent with Hobbes' idea that "Reason" is "speech" and does not derive from experience. 582 So following this idea of "reason", he continually criticizes Coke for not making the correct distinctions between words, i.e. between "Lex" and "Jus", "Committing" and "Transferring", etc.583 Names are to reason, what reason is to philosophy: they are the fundamental linguistic artefacts upon which reason must work. The way in which man uses language is the highest expression of his rational capacity. "Reason" can manipulate language and - if correct - guide the manipulation of the world itself. Although naming is in fact arbitrary, and the use of signs to stand for or evoke something else is common to man and animals, only human beings have language because animals use signs to communicate but they do not devise sounds or things with the conscious purpose of having them signify ideas. 584 So the use to which man puts names in science is the apogee of reason. In A Dialogue the Philosopher maintains that showing and convincing the reader of the significance of statutary laws will help to clear their importance for the life of a civilised country. This is consistent with Hobbes' view in Leviathan about the role of science. In fact, according to Leviathan, scientific knowledge consists mainly in the linguistic activity of calculating and explaining to others, and in civil philosophy convincing them of the logical consequences of consistently held, and "apt", definitions. Leviathan says:

576 Enid Campbell, "Thomas Hobbes and the Common Law", Tasmanian University Law Review, Vol.1 (July 1958), pp.20-45, pp.32,37.577 See, The Ethics Of Aristotle: The Nicomachean Ethics, Book 6, Translated by J.A.K. Thomson,Revised with Notes and Appendices by Hugh Tredennick, Introduction and Bibliography byJonathan Barnes (London, Penguin Books, 1976),1138b35-l 142al2, pp.204-215.578 See, A Dialogue, p.62.579 See, The Nicomachean Ethics, Book 6, 1140a24-l 140bl2, pp.209-210.580 See, A Dialogue, p.56.581 Ibidem, p.55.582 See, Leviathan, Part I, chap.4, pp. 106-107.583 See, A Dialogue, pp.73,89,106,110-111.584 See, De Homine, chap.X, 1, pp.36-37.

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By this it appears that Reason is not as Sense, and Memory, borne with us; nor gotten by Experience onely; as Prudence is; but attayned by Industry; first in apt imposing of Names; and secondly by getting a good and orderly Method in proceeding from the Elements, which are Names, to Assertions made by Connexion of one of them to another; and so to Syllogismes, which are the Connexions of one Assertion to another, till we come to a knowledge of all the Consequences of names appertaining to the subject in hand; and that is it, men call SCIENCE. 585

This means that "reason" is the vital impetus of philosophy, and science. Though "reason" is not shared with the beasts, Hobbes denies that this entails that it must be born with humans, or be acquired by experience alone. Indeed, by saying that "reason" is, as a faculty of mind, attained by "industry", Hobbes means that only if men are compos mentis, healthy and living under favourable conditions, they develop by their own efforts and by following the method he describes, the capacity to acquire it. The purpose of "reason" consists in acquiring "science" - which is the "knowledge of all the Consequences of names appertaining to the subject in hand". A Dialogue points out that Coke was at odds with this method because instead of making the correct distinctions between words, he always appealed to custom which can only generate "prudence", i.e. "Wisdom", but not "science". Provocatively, the Philosopher states:

Truly I never read weaker reasoning in any Author of me Law of England, than in Sir Edw Coke's Institutes, how well soever he could plead. 586

Here Hobbes is contentious, he provokes his audience in order to impress on them that his science can guide action better than prudence. The application of Hobbes' notion of "reason" which is the calculation of consequences, to jurisprudence shows several things: firstly, that law depends on the existence of sovereignty and that the king has the legislative power; then that this entails that the king must have control over the administration of justice, the appointments of judges, and also over determining particular judgements. According to A Dialogue, Coke's reasoning and common law does not follow the scientific method. This is a logical entailment of the fact that the Philosopher's criticism of "legal reason" as embodied in community experience follows from Leviathan's conception of "reason" and "science". The Philosopher's objections to The Institutes are congruent with Hobbes' idea of science. According to Hobbes, "prudence" by making the individuals aware of its limitations shows to them the necessity of a better knowledge: science. This is the role of prudence in the construction of Hobbes' science. Also, prudence confirms the conclusions of science if (and only if) adequate "critical" experience is produced by "artifice".587 But as it is difficult to produce this "critical" experience under normal circumstances, even if prudence sometimes does not confirm, this is not epistemologically significant for Hobbes. 588 Indeed, prudence is fallible because it

585 Leviathan, Part I, chap. 5, p. l15.586 A Dialogue, pp. 156-157.587 See: Dialogus Physicus De Natura Aeris, Edited and Translated by Simon Schaffer, in Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump, Appendix, pp.345-391, p.351; also Ibidem, chap.VII, p.326.588 See, Douglas Jesseph, "Hobbes and the method of natural science", The Cambridge Companion to Hobbes, pp.86-107, p.96.

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depends upon an extrapolation from past cases, whereas science is infallible and universally applicable. 589 The fact that Coke argues from prudence does not mean that he is using prudence as Hobbes would. In A Dialogue the Philosopher claims that Coke's "Artificial Reason" is based on a wrong use of prudence, i.e. as the foundation, not as the confirmation of reason. He argues that if we follow common law reason, the unreason of the past would restrict the future by being at odds with science, and with the exercise of sovereignty.For Hobbes, "science" is the knowledge of how to produce effects. In the case of jurisprudence, the "effect" of science should be to help the people to understand law and its rationality achieving salus populi. In Hobbes' science particular events can only be examples. What is crucial for science is that everything studied be treated with consistency in naming, plus precision in distinguishing, and thoroughness in the calculation of consequences. 590 Science, for Hobbes, states universal and necessary relations but based on arbitrary assumptions, and is like geometry a tool in the hands of individuals. Hobbes assumes that geometry models causality, as it could if it were ballistics, or mechanics generally. In this way, Hobbesian geometry describes parts of moving bodies and is a scientific way of describing mechanics. 591 Considered in toto, method, for Hobbes, is both analytical, i.e., resolutive, and synthetical, i.e., compositive. The consequences of subsequent statements always rely on the correctness of the premises. 592 In geometry, for instance, we understand a geometrical figure by resolving it into its elements and then synthetically reconstructing it. Employing this method geometricians can start with definitions, combine them in the form of axioms, and arrive at conclusions which are not only certain and far from trivial, but which were also not obvious when the exercise began. In other words, geometry, which Hobbes conceives of as a practical science, expands the field of indubitable knowledge, and enables us to produce desired effects. "Science" is a powerful tool because by the act of scientific reasoning we can, as it were, analytically subtract from a named body all of its properties, i.e. the "accidents", arrive at its essence, and then, abstracting from the totality of properties, explore the logical implication of interaction amongst minimally defined entities. 593 If the definitions are correct, it is possible to add the well defined named properties of a body, i.e. its "component parts" or elements, back to produce an entity that is completely and indubitably comprehended by the reasoner, and this is the "composition" or synthetical reconstruction produced by the act of scientific reasoning. 594 So, in Hobbes' science, the analytical method of resolution ''derives" principles from evidence, i.e. phenomena, and the synthetical method of composition by the use of definitions "deduces" the consequences of principles, and reconstructs phenomena. 595 De Corpore explains:

And in this manner, by resolving continually, we may come to know what those things are, whose causes being first known severally, and afterwards

589 See, Leviathan, Part I, chap.5, p.l 17.590 See: De Homine, chap.X, 4, p.41; Leviathan, Part I, chap.5, p.l 15.591 See, Iain Hampsher-Monk, A History of Modern Political Thought, pp. 14,20.592 See, De Homine, chap.X, 5, p.42.593 See, De Corpore, chap.VI, 10, p.77.594 See, Ibidem, p.79; see also: Richard Peters, Hobbes, pp.67-68.595 See, William Sacksteder, "Hobbes: The Art of the Geometricians", Journal of the History of Philosophy, Vol. XVIII (1980), pp.131-146, pp.137-138.

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compounded, may bring us to the knowledge of singular things. 596

As pointed out by Goldsmith, Hobbes' science is the "knowledge of causation".597 In this way, for Hobbes, the use of definitions produce effects which we can see in the world, and of which they are plausibly the causes. Science, through reason, is not confined to reproducing the original, named perceptions or experiences produced by the motion of external objects. Through "science" it is possible to learn how to repeat what we have done before, or to do something new on subsequent occasions, and this capacity of bringing about desired ends is "power".598 In this way, the exercise of "reason" provides us with "science" which is "power" to produce desired effects. 599 So one of the distinguishing features of Hobbes' conception of science is the idea that knowledge is deeply enmeshed in "power".Especially since the 1970s, the belief that knowledge is deeply enmeshed in power has become one of the central themes of postmodernism. 600 But of course, it would be farfetched to argue that because Hobbes himself held this belief he is a protopostmodemist. 601 Nevertheless, Hobbes' idea that science is power to produce desired effects is taken by Foucault as meaning that truth is always a social construct.602 Thus Foucault is concerned with turning the political project of Leviathan upside down, i.e., he is concerned not with how politics and jurisprudence and more in general modern science, is functional to the establishment by the individuals of the absolute power of the sovereign, but with how scientific knowledge produces the power to subjugate the subjects. 603 But Foucault's historical enterprise, i.e., his "archeology" of knowledge, is alien and at odds with Hobbes' attempt to eschew the methods of history from science itself, even though Hobbes himself in Leviathan, A Dialogue and Behemoth makes a rhetorical use of historical arguments as confirmation of his scientific hypotheses.In A Dialogue, because Hobbes considers geometry as the model of science, and because of his criticism of the common lawyers for following Coke's non-scientific method based on historical experience, the Philosopher states:

...the great Masters of the Mathematicks [according to Leviathan’s table of sciences, "Mathematiques" includes "GEOMETRY” and "ARITHMETIQUE"]604 do not so often err as the great Professors of the Law.605

However, this statement is not to be understood as meaning that jurisprudence cannot be a science. Indeed, the Philosopher attributes to juridical learning the same characteristics "as all other Sciences". The use of science to produce desired effects is 596 See, De Corpore, chap.VI, 4, p.69.597 See, Maurice M. Goldsmith, Hobbes' Science of Politics, p.9.598 See, Leviathan, Part I, chap.5, p.l 15.599 See, David P. Gauthier, The Logic of Leviathan, p.l 1.600 See, Andrew Heywood, Political Theory: An Introduction (London: Macmillan, 1999), p. 12.601 I have argued above that Hobbes also held the belief that (his) science states universal and necessary relations, even though based on arbitrary assumptions.602 See, Andrew Heywood, Political Theory: An Introduction, p. 13.603 See, Michel Foucault, "Power, Right, Truth", Contemporary Political Philosophy: An Anthology, Edited by Robert E. Goodin and Philip Pettit (Oxford: Blackwell, 1997), pp.543-550, pp.545,548604 See, Leviathan, Part I, chap.9, p. 149.605 A Dialogue, p.53.

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a feature of "civil philosophy".Yet, the fact that few philosophers today accept the idea that jurisprudence is a science, leads many critics to question whether Hobbes' claim that his legal theory is scientific should be taken seriously. 606 This question is raised also in view of the fact that it is doubtful whether or not the conclusions of his jurisprudence really flow, as Hobbes claims, inexorably from self-evident or readily acceptable premises. 607 In order to answer this question it is necessary to bear in mind that Hobbes' theory was not constructed only or mainly in order to satisfy pretensions of scientific detachment or of universal validity, but to support conclusions that were to the highest relevance to contemporary political circumstances in England. 608 The fact that Hobbes viewed his legal theory this way, however, did not prevent him from also believing that the conclusions of his politics and jurisprudence have universal validity. That he firmly held this belief is confirmed by the fact that in Leviathan he stated: "The skill of making, and maintaining Common-wealths, consisted in certain Rules, as doth Arifhmetique and Geometry".609 Of course, as Tom Sorell points out, the very fact that Hobbes said that he believed that the conclusions of his jurisprudence really flow inexorably from self-evident or readily acceptable premises cannot per se convince us as modem readers that they really did so, or that indeed he was really following a geometrical method. 610 However, in the very fact that he was able to establish a plausible connection between natural and civil philosophy, even though at a fairly high level of generality, consists the novelty of his method. For Hobbes natural and civil philosophy both result from reasoning guided by a method of which geometry is the specimen. Thus Hobbes' science was supposed to have the rigour of geometrical synthesis and analysis, and his civil philosophy was distinguished by the method of passing step by-step from clear definitions to evident conclusions, or from controversial claims back to the meaning of the relevant terms. By following this method, Hobbes adduced arguments from the definitions of terms like "right" and "just" in order to show that rebellion against the sovereign power can be neither just nor right. So Hobbes' claim that his legal and political theory is scientific should be taken seriously because politics as a science can bean instrument to govern the people, making them obey the "reason" of the sovereign in order to maintain peace and security: Hobbes believes that this principle has universal validity. 611

Because the use of science is to produce desired effects, Hobbes compares both "civil philosophy", and jurisprudence, with geometry. 612 Although as we have seen all the sciences have some arbitrary foundations, politics and geometry differs from, for example, chemistry, in that in both politics and geometry' we make our fisures or states ourselves, whereas in chemistry our making consists in combining bodies independent or external to us. So in politics and geometry we are makers to the full extent, and consequently we also have maker's knowledge in full; the objects of such knowledge have properties which axe particularly amenable to science. Applying the

606 See, Tom Sorell, Hobbes, p. 143.607 See, Johann Sommerville, "Lofty science and local politics", The Cambridge Companion to Hobbes, pp.246-273, pp.246-247.608 See, Ibidem, pp.247-248.609 See, Leviathan, Part II, chap.21, p.261.610 See, Tom Sorell, Hobbes, pp. 13,17-24.

611 See, Leviathan, Part II, chap.21, pp.260-261.612 See, James R. Stoner Jr., Common law and liberal theory: Coke, Hobbes, and the origins of American constitutionalism (Lawrence Kansas, University Press of Kansas, 1992), p.81.

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same principle Vico will state: verum ipsum factum, i.e. it is only what we have made that we can truly know. As James Tully points out, Hobbes together with other seventeenth century writers such as Suarez, Bacon, Pufendorf, Boyle, Newton, Vico, Locke, criticizes but at the same time is influenced by the Aristotelian distinction between natural and practical knowledge. According to this distinction, while man's object in the natural sciences is to understand and to contemplate, in the practical sciences is to live in a certain way and to make certain things, not to understand except to act. 613 According to Hobbes, as for Plato, knowing means remembering what one has made. 614 So in geometry we make the things we know. Politics and geometry are demonstrable sciences. In Six Lessons to the Professors of the Mathematics, Hobbes states:

Geometry is therefore demonstrable, for the lines and figures from which we reason are drawn and described by ourselves; and civil philosophy is demonstrable because we make the commonwealth ourselves. 615

On the other hand, the normal Scholastic classification is between natural philosophy as theoretical and practical philosophy, i.e. economics, politics and ethics, as non-theoretical. 616 Francis Bacon is standardly credited with breaking the normal Scholastic classification by apportioning to each branch of knowledge a theoretical and a "prudential" aspect. 617 Hobbes, working from the traditional model of the knowing maker develops the theoretical aspects of politics into a science going beyond what Machiavelli anticipated. 618 Man is the maker of the commonwealth which without the social contract, and unless individuals keep the covenant, would perish. Accordingly, law is not about nature. As James Tully points out, in Hobbes' model of science the maker's knowledge is "the archetype" according to which an agent "makes or does something and judges the outcome".619 As we have seen, the purpose of "civil philosophy" is to achieve man's wellbeing by showing that absolute sovereignty is necessary in order to rule the country maintaining peace and security, and jurisprudence should contribute to such a task by helping the people to understand and to obey the laws. Because Hobbes believes in the idea of science as having practical purposes, he defines how the lawyers should consider civil law. In A Dialogue, the Philosopher tried to clarify the fundamental principle that ought to direct the interpretation of the statutes by stating that we owe unconditional obedience to the sovereign. 620 This represents the criterion from which to derive the notion of legality. But the Lawyer points out what is most dubious about this argument, i.e. the 613 See: James Tully, A Discourse on Property; John Locke and his adversaries (Cambridge, UniversityPress, 1980), pp. 11,23-24; H.H. Joachim, The Nicomachean Ethics, ed. D.A. Rees (Oxford, TheClarendon Press, 1970), pp. 1-18.614 See, Arthur Henry Child, "Making and knowing in Hobbes, Vico and Dewey", University of California Publications in Philosophy, 16, No. 13 (Berkeley, University of California Press, 1953), pp.271-310,p.271.615 Six Lessons to the Professors of the Mathematics, "The Epistle Dedicatory", The English Works of Thomas Hobbes of Malmesbury, Vol.VII, pp. 183-184.616 See, J.A. Weisheipl, "Classification of the sciences in medieval thought", Medieval Studies, 27, (1965), pp. 54-90.617 See: Francis Bacon, Novum organum, I, Works, (A) Vol. IV, pp.79,373; Lisa Jardine, Francis Bacon: Discovery and the Art of Discourse (Cambridge, University Press, 1975), ch.4.618 See, James Tully, A Discourse on Property, pp. 11,12,24.619 Ibidem, p.23.620 See, A Dialogue, p.54.

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fact that history shows cases of unconditional obedience to the sovereign without best rule for peace and security. As an example he makes this clear description:

The subjects of those Kings who affect the Glory, and imitate the Actions of Alexander the Great, have not always the most comfortable lives, nor do such Kings usually very long enjoy their Conquests. They March to and fro perpetually, as upon a Plank sustained only in the midst, and when one end rises, down goes the other. 621

The Philosopher is not too worried by this objection and all that he answers is, "Tis well", before reasserting that, in any case, in order to maintain peace and security it is necessary to give the King all the means to exercise his sovereignty. Hobbes always dismisses any argument from history contrary to his theory as reference to unselected "experience" which by itself, without the help of "artifice", can deliver no more than the knowledge of particular situations which cannot disprove the universal and infallible conclusions of science. 622

For Hobbes the authorization of the king to rule the people is not by any means limited by its good use. Indeed in principle, although not in fact - as it must protect the life of the citizens, it has no legal limits. Accordingly, to resist invasions or to threaten subjects' lives is not, and cannot be a result of authorization, but only of mere power. Leviathan states:

Writers of Politiques, adde together Pactions, to find mens duties; and Lawyers, Lawes, and facts, to find what is right and wrong in the actions of private men. 623

Jurisprudence as a subset of politics follows a deductive method of which geometry is the paradigm. But the conclusions reached must be consistent with experience to the degree that the actual world matches the world posited in Hobbes' theory, even though it is not clear whether, even in the unlikely case that the two were to match with unequivocal precision, could odd experience ultimately disprove his theory. 624 Still science has some vulnerability to factual considerations, which means that it is not true that history (or the empirical world) can never disprove his theory, even though Hobbes, in fact, is not concerned, like Karl Popper requires us to be, with how his theory could be disproved because he saw no use for this concern. 625 For Hobbes the "Truth of Speculation" must be converted "into the Utility of Practice".626 In this way, the selective "critical" experience in scientific theories is related to "utility" and has a role in confirmation. Supposedly, this selective experience, i.e. the "critical" example from history, confirms the correctness of Hobbes' science of politics which adopts a monistic concept of the nature of power. A Dialogue gives a recent confirmation: after denying the right of raising taxes to Charles I by invoking mixed constitutionalism, the Long Parliament, or the Rump, once the members supporting the Independents

621 Ibidem, p.60.622 See: David Johnston, The Rhetoric of Leviathan. Thomas Hobbes And The Politics Of CulturalTransformation, (Princeton, Princeton University Press, 1986), pp. 10-11.623 Leviathan, Part I, chap.5, p.l 10.624 See, James R. Stoner Jr., Common law and liberal theory, p. 104.625 See, Alan Ryan, "Hobbes's political philosophy", The Cambridge Companion to Hobbes, pp. 208-245, p. 213.626 Leviathan, Part II, chap.31, p.408.

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they got rid of the Presbyterians, it murdered Charles and levied money without seeking the approval of anybody else, and so itself acted as an absolute sovereign. Cromwell, eventually, did the same. 627 Moreover, the Philosopher claims that in every country whoever governs can obtain all the necessary financial resources without having to ask anybody's consent. 628

Hobbes was aware that it was necessary to reconcile his scientific method withhistory, and with the common law mind of the English people. In 1644 John Aubrey, who regarded Hobbes as "rare for Definitions", and the lawyers as prone to "Paraiogismes" because not "analytiques" and "building on old-fashioned maximes", unsuccessfully encouraged him to accomplish this task. 629 He then told Hobbes:

Me thinkes 'tis pitty that you have such a cleare reason and working head did never take into consideration the learning ofthe Lawes; and I endeavoured to perswade him to it. 630

In the next sentence quite significantly, Aubrey tells us also that in 1644 Hobbes refused to study the laws because: "'twas a long, taedious, and difficult taske and he doubted he should not have dayes enough to left to do it." 631 Indeed, as Skinner points out, in that period Hobbes still regarded science as inherently able to persuade the people of its truths without coming to terms with the common law mind of the English people. By the time he started to write Leviathan he had begun to change his mind. Later A Dialogue anounced a further stage of Hobbes' reconversion to the rhetorical ideal of an alliance between ratio and oratio. 632 This tension between Hobbes' science of politics and common law which I have outlined was noted by A Dialogue's first publisher. Indeed, a statement of William Crooke in the preface of the first edition of A Dialogue says that this work is an attempt "to acco[m]modate the general notions of his [Hobbes' science of]politic[s] to the particular constitution of the English monarchy".633 That is to say, by the use of rhetoric Hobbes aimed at marrying his civil philosophy with historical knowledge. As a result, Hobbes in A Dialogue by combining "reason" with "eloquence", confirms hispolitics and jurisprudence as the exemplary science based on geometry.

Concluding remarks

What I said so far challenges conventional wisdom which considers the natural sciences rather than civil philosophy, as the closest to Hobbes' epistemological model based on geometry. Indeed, as for Hobbes we know scientifically what we make, and as the "commonwealth" is an artificial construct, in jurisprudence we have maker's scientific knowledge more than in say physics or chemistry. But my discussion highlights also something else new: it reassesses and confirms the unity of Hobbes' notion of science in both natural and civil philosophy in the light of the findings of Quentin Skinner's recent book. As we have seen, for Hobbes, "Science" has to 627 See, A Dialogue, p.64.628 See, Ibidem, p.66.629 Oliver Lawson-Dick ed., "The Life And Times Of John Aubrey", Aubrey's Brief Lives (London, Mandarin Paperback, 1992), p.xlviii.630 Ibidem.631 Ibidem.632 See, Quentin Skinner, Reason and rhetoric in the philosophy of Hobbes, p.353.633 The English Works Of Thomas Hobbes, Vol.6, p.422.

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contribute to the "art" of generating the desired effects. 634 So A Dialogue considers jurisprudence as the science which contributes to the "Art" of knowing the laws. But, in this case, "the science" and "the art" are not separate, but part of the same process of producing the desired effect which is to maintain peace. So the Philosopher says to the Lawyer: "I grant you that the knowledge of the Law is an Art," after saying that it is also a science. 635 However, A Dialogue testifies to Hobbes' awareness of an important difference between geometry and politics. Civil scientists, unlike geometers, need to make use of rhetorical arguments to persuade their audiences. So in A Dialogue Hobbes' attempt to use precise historical references in order to confirm his science of politics is the result of a self-conscious effort to please the historical predisposition of the English mentality, in order to increase public consent for Leviathan's political views. In this way, Hobbes' use of rhetoric sharpens A Dialogue's rational arguments in favour of royal absolutism. Indeed, if the citizens are to be convinced to obey their political ruler, the "art" of rhetoric - which is not based on science, but on "prudence" - will be an important contributor to that end. 636 The reason for this lies in human behaviour, and in the fact that civil society is not a natural institution, but an artificial one: Hobbes, unlike Aristotle, does not regard man by nature as a political animal. The artificiality of civil society is significant, because humans have to be motivated to act in the right way, by having the right beliefs - so they need to be persuaded. These fundamental premises of Hobbes' political theory, i.e. the character and role of "prudence" and of "science", explain also the main characteristics of his study of English laws in A Dialogue. So the necessity of employing persuasion based on historical arguments in order to convince the people to obey the sovereign maintaining peace and security, is intended to be in the service of the "truths" of Hobbes' deductive method and does not undermine the unity of his scientific enterprise. However, moving now from exposition to evaluation, there remains a problem in Hobbes' idea of science. Hobbes mistrusted any great reliance on experimental evidence to prove the truth or falsehood of scientific theories, which is at odds with what today most epistemologists regard as the correct scientific method. 637 Of course, there is nothing new or out of context in this criticism. Indeed, Hobbes' mistrust for experimental evidence was one of the two reasons why his views found little support in the English natural philosophy community. 638 The other reason was that Leviathan's theological positions were out of tune with the strong religious beliefs held by most scientists of the time. 639 Evidence of this is that Hobbes, unlike the other most famous scientists of the time, was never admitted to the Royal Society, which was founded in 1660 in order to foster the progress of the natural sciences. 640 Most natural philosophers found Hobbes' criticism of the experimental method advocated by the Royal Society unconvincing. 641 They objected to the fact that Hobbesian philosophy did not seek the foundations of knowledge in witnessed and testified matters of fact, which for Hobbes was tauntamount to grounding philosophy in 634 See, David Johnston, "Plato, Hobbes and Practical Reasoning", Thomas Hobbes and political theory, Edited by Mary G. Dietz (Lawrence, University Press of Kansas, 1990), pp.37-54, p.49.635 A Dialogue, p.55.636 In regard to this, see: David Johnston, The Rhetoric of Leviathan, pp.90-91.637 See, Richard Tuck, Hobbes, p.49.638 See, Steven Shapin and Simon Schaffer, Leviathan and the Air-Pump, p. 13.639 See, Ibidem,pp.l53-154.640 See, Ibidem, pp.110,139.641 See, Ibidem, p. 13.

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"dreams", instead of in the infallible deductive method of Euclidean geometry. 642

Nevertheless, if my interpretation is correct, Hobbes was not denying that his theory could be confirmed by "selective" and "critical" empirical knowledge, even though perhaps incongruently he also believed that empirical knowledge as such could not disconfirm it except within those same selective and critical conditions required by his own theory, much in the same way as it could not disconfirm the deductive method of Euclidean geometry. Thus as long as "selective" and "critical" historical knowledge was confirming the conclusions of his own political theory, i.e., the necessity of absolute sovereignty in order to maintain peace and security, the practical utility of his science of politics was validated and that was what mattered for Hobbes. So A Dialogue's concern with history is supposed to fill any gap, at least rhetorically, between Hobbes' science of politics and the empirical knowledge of the past, i.e. "prudence", on which it was based the English "common law mind".643

642 See, Ibidem, p.339.643 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, Part I, chap.II, p.46.

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CHAPTER V

WHAT HOBBES IS DOING BY INVOKING HISTORY ISA DIALOGUE

Presentation of the argument

In the fifth chapter of the thesis I will examine how Hobbes uses history in A Dialogue. My purpose is to prove that Hobbes is trying to complete the philosophical enterprise of Leviathan and create a scientific jurisprudence. Accordingly, I will examine the principles that he is applying in this attempt relating Hobbes' use of history to the role of examples and confirmation in scientific theories which are "conditional", and to his rhetorical enterprise. Hobbes sought to apply to the study of law the same deductive principles which applied to geometry. By doing so he intended to reinforce the idea that sovereignty cannot be shared. However, Hobbes did not want to present his argument in favour of absolute sovereignty as one involving a change in the legal system. Accordingly, given the English preoccupation with the past embodied in the historical theories of sovereignty and in the arguments of Coke and the common lawyers, he needed to justify this position by recourse to history.However, Hobbes' conception of sovereignty was based on rationalist principles which denied that historical knowledge could be the basis of a scientific politics and jurisprudence. In fact, he criticized the common lawyers for their use of history to ground their conception of sovereignty according to which law stands even against the sovereign. Paradoxically, given the fact that as I have argued in the previous chapter he himself left very little room for the possibility of historical disconfirmations of the absolutist conclusions of his science of politics, Hobbes appealed to history in order to confute the constitutive role of the historical arguments which were at the foundations of the political positions maintained by his opponents. By doing so, Hobbes in A Dialogue actually suggests the necessity of employing the language of persuasion, i.e. the "art of rhetoric", in order to convince the people to be instructed, and educated by the "truths" of his "science" of politics and jurisprudence. By this use of rhetoric Hobbes confirms the conclusion reached in Leviathan, wherein by reverting to the position he held before writing The Elements of Law and De Cive, he maintained that "civil science" alone cannot be "the way" to endorse obedience to the sovereign. That is to say, politics and jurisprudence on its own cannot convince the people to obey their sovereign thereby preventing the recurrence of the situation that will lead to civil war. In the light of this conclusion, Hobbes in A Dialogue had to accept what few would deny, i.e. that to instruct, or educate the individuals to act as good citizens, it is necessary to employ the language of "civil science", and political realism not on its own, but together with that of persuasion. This confirms Skinner's view that Hobbes employed the language of his science together with that of the humanistic and classical "art of rhetoric", which I have examined in chapter one of the thesis and which makes use of the methods of inventio, dispositio and elocutio, briskly

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summarized in Ad C. Herennium, 644 one of the basic textbooks of the Renaissance humanistic curriculum.645 In A Dialogue Hobbes makes a cunning use of these classical techniques of persuasion by his own speech act "move", i.e. by selectively appealing to history in order to confute the constitutive role of the common lawyers' historical arguments in favour of mixed constitutionalism.

Hobbes' use of History as Rhetoric in A Dialogue

We can now look into how Hobbes practically constructs his argument in A Dialogue. Hobbes uses history selectively to confirm his scientific hypotheses about absolute sovereignty. So Hobbes thinks he is able to prove - as a matter of legal fact - that the English legal system actually gives to the king the means to defend his right of absolute sovereignty. This is the reason why A Dialogue quotes 13 Car. 2 c. 6. The Lawyer states that according to this law, the supreme power, the command, and the organization of the army, always belongs and belonged to the kings.

Ph. But in this point of raising Souldiers, what is I pray you the Statute Law? La. The last Statute concerning it, is 13 Car.2.c.6. By which the Supream Government Command, and disposing of the Militia of England is delivered to be, and always to have been the Antient Right of the Kings of England…646

The statute declaring this principle should be seen as clarifying the inalienable right of the sovereign to have at his disposal enough soldiers to defend the country. Here, supposedly, Hobbes makes his point by appealing to the "knowledge of fact" that the direct knowledge of the above law implies. The knowledge of a positive law is the knowledge of a sovereign's speech by which he makes known to others his will. 647

But, in this way, the Lawyer also invokes the common law principle that statutes merely declare what is already the juridical norm by making it more explicit. The common lawyers were aware of the distinction between custom as belief that the past is authoritative per se and custom as communal experience which also, according to Coke and Hale, corresponded to the historical embodiment of "artificial reason". They meant to advocate the communal experience and the "artificial reason".648 The Philosopher rejects the idea that legislation is only, or mainly, declaratory of custom; nevertheless, he does not object to its being declaratory of the rationale of sovereignty! In fact, he defines law in this way:

644 Ad C. Herennium stated: "Inventio is the capacity to find out the considerations, true or plausible, that may se to make our cause appear probable... Dispositio is the capacity to order and distribute the things we have found out in such a way as to indicate how they can best be placed... Elocutio is the application of appropriate thou; and words to describe the things we have found out." Adaptation from quotes rendered in: Quentin Skin; Reason and Rhetoric, pp.45-46; cross-reference: Ad C. Herennium de ratione dicendi, Edited and translated Harry Caplan (London, Loeb, 1954), i.ii.3, p.6.645 See, Quentin Skinner, Reason and Rhetoric, p .3 76.646 A Dialogue, p.60.647 See, Leviathan, Part I, chap.4, p. 102.648 See, Gerald J. Postema, Bentham And The Common Law Tradition (Oxford, Clarendon Press, 1986), pp.4-5.

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A Law is the Command of him, or them that have the Soveraign Power, given to those that be his or their Subjects, declaring Publickly, and plainly what every of them may do, and what they must forbear to do. 649

Supposedly, the will of the sovereign becomes law only when the citizens have the possibility of knowing the rules they must obey. Accordingly, the Philosopher refers to the statute of 13 Car. 2c. 6. as being an innovation in that it determines what is the juridical rule. 650 In fact, the main point for Hobbes is that the statutes as the commands of the sovereign establish the law, and so are innovative. The sovereign's commands may endorse custom. But then it is his endorsement that makes it law, not the fact that it is custom. In accordance with this claim, allegedly, Leviathan's theory of absolutism is the best interpretation of the English legal system. The gist of Hobbes' argument is generated through deductive reasoning. Notwithstanding the possibility of historical mistakes committed by the sovereigns, admitted by Hobbes, and in spite of the fact that "experience concludeth nothing universally", what conforms to reason, i.e. the existence of absolute sovereignty, is - and must be - historically correct if, as a matter of fact, civil war is avoided. Hobbes does not concede that there are historical instances crucially disconfirming that absolute sovereignty is always necessary in order to maintain peace. Even if a specific law contradicts or undermines such a principle, as does 25 Ed.l.c.6, declaring that no king shall levy taxes without the consent of the Houses, this statute is a political and a juridical mistake. At most it may express a merely contingent derogation from the necessary and inalienable prerogatives of the civil power.

Shall the King, who is to answer to God Almighty for the safety of the People, and to that end is intrusted with the Power to Levy and dispose of the Souldiery, be disabled to perform his Office by virtue of these Acts of Parliament which you have cited? If this be reason, 'tis reason also that the People be Abandoned, or left at liberty to kill one another, even to the last Man; if it be not Reason, then you have granted it is not Law. 651

In this passage of A Dialogue the Philosopher also invokes the other principle of common law, that it embodies reason, which Hobbes here uses critically as a principle excluding some historical experience. The sovereign must be able to defend the country against any foreign enemy. His duty requires having quick and easy access to sufficient financial resources. A wrong decision should not imperil future generations. The law of nature is suprema lex and requires defense against that which endangers the common good. So, of course, history presents some situations that conform to Hobbes' idea of rational behaviour, but other cases do not. A Dialogue uses the latter instances to show the troubles caused by bad decisions here not in accord with reason. So sharing sovereignty by giving to Parliament the authority to deny the king's right to levy taxes whenever he thinks it necessary, leads to civil war.Hobbes did not think that sharing the power between King and Parliament could be a good way to exercise sovereignty, neither did he think that England was, or could ever become, a mixed monarchy and maintain peace. He firmly believed that history did not show that there are better means for securing peace than government by absolute sovereignty. Thus the Philosopher states:649 A Dialogue, p.71.650 See, A Dialogue, p. 60.651 A Dialogue, p. 61.

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There is no Nation in the World where he, or they that have the Sovereignty do not take what Money they please, for Defence of those respective Nations, when they think it necessary for their safety. The late long Parliament denyed this; but why? Because there was a Design amongst them to Depose the King. 652

By combining the two tactics of: (a) proceeding mainly according to deductive reasoning; appealing selectively to the historical evidence, the Philosopher can always prove his point, which Hobbes believed that in fact is not disproved by history, even though it could have been. Certainly the dialogistic structure of the work contributes to making such a result possible. But also Hobbes' methodology in itself is, or rather he would have us believe it to be, flexible enough to interpret all aspects of historical reality. This allows each statement to seem as if it is confirmed by empirical observations. As we have seen, A Dialogue's reasoning proceeds mainly according to a deductive method. The theory is deductive, the evidence is empirical; the two have a different role, but there is supposedly no conflict between them. Indeed, the Philosopher makes many references to what the application of "Reason" reveals to be the main historical characteristic of the English constitutional system, i.e. its being an absolute monarchy. For example, he states:

[S]ince therefore the King is sole Legislator, I think it also Reason he should be sole Supream Judge. 653

Hobbes is concerned with "Reason", more than with "history". History confirms, but it does not give rise to the rational arguments of the Philosopher. This is a general feature throughout A Dialogue.A Dialogue's interest in the past has another strong motivation, which it is important to clarify. Hobbes analyses the behaviour of men with the primary intention of finding adequate means to regulate their actions. Supposedly, the result of the "experience" shared by all men confirms the necessity of establishing absolute sovereignty. Accordingly, to determine the most suitable political institutions assumes the maximum urgency. But the study of the past has also a particular significance. Understanding why some people acted in a certain way may be relevant for the future. Already in 1629, Hobbes conveyed this meaning in the letter to the readers that prefaces his translation to The History of the Grecian War Written by Thucydides, and for this reason some of the "Hobbes and Thucydides" literature suggests that both operated with a causal framework. 654 In fact, he stated:

For the principal and proper work of history being[is] to instruct and enable men, by the knowledge of actions past, to bear themselves prudently in the present and providently towards the future... 655

652 Ibidem, p.66; see also, p.61.653 A Dialogue, p.68654 About the relation between Hobbes and Thucydides, see, for instance: Clifford W. Brown, Jr., "Thucydes Hobbes, And The Derivation of Anarchy", History Of Political Thought, Vol.8, no. 1 (Spring 1987), pp.33-62, pp.33-34, passim; Gabriella Slomp, "Hobbes, Thucydides and the Three Greatest Things", History of Political Thought, Vol.11, Issue 4 (Winter 1990), pp.565-586, pp.585-586.655 "To the Readers", The History of the Grecian War Written by Thucydides. Translated by Thomas Hobbes Malmesbury, The English Works Of Thomas Hobbes Of Malmesbury, Vol.8, p.vii.

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In A Dialogue the description of the sovereign power among the ancient Saxons has the same purpose, i.e. to show: "that Government is [and was] indivisible", and that to preserve peace it must always be kept indivisible. 656 Indeed, the aim of history should be to instruct the people for the future by giving confirmation to Hobbes' deductive politics and jurisprudence. The idea that scientific knowledge is superior to history is not inconsistent with Hobbes' introduction to Thucydides. In it he points out that the task of instructing men by using examples from the past is a difficult one. In regard to this, Hobbes was concerned about the attitude of the readers; he tells us that this concern was the reason why he delayed the publication of his translation of Thucydides:

For I saw that, for the greatest part, men came to the reading of history with an affection much like that of the people in Rome: who came to the spectacle of the gladiators with more delight to behold their blood, than their skill in fencing. For they be far more in number, that love to read of great armies, bloody battles, and many thousands slain at once, than that mind the art by which the affairs both of armies and cities be conducted to their ends. 657

In A Dialogue as in Leviathan Hobbes holds that history generates merely prudential knowledge; but historical experience raises in the people's minds political conceptions which could persuade them that absolute sovereignty is the best form of government. The Philosopher assumes that government is originally a monarchy in which the royal authority is as absolute as the power that anticipated it, i.e. the power of the sovereign lord of a family:

...the beginning of all Dominion amongst Men was in Families; in which, first, the Father of the Family by the Law of nature was absolute Lord of his Wife and Children. Secondly, made what Laws amongst them he pleased. Thirdly, was Judge of all their Controversies. Fourthly, was not obliged by any Law of Man to follow any Counsel, but his own. Fifthly, What Land soever the Lord sat down upon, and made use for his own, and his Families benefit, was his Property by the Law of First-Possession, in case it was void of Inhabitants before, or by the Law of War, in case they conquer'd it. In this Conquest what Enemies they took and saved were their Servants: Also such Men as wanting Possessions of Lands, but furnished with Arts necessary for Mans life, came to dwell in the Family for Protection, became their Subjects, and submitted themselves to the Laws of the Family 658

This reasoning, and the idea that the royal authority is as absolute as the power that anticipated it, acquires some importance for identifying historically the most successful way of ruling the country and, together with this, for establishing juridically the legitimacy of the existing sovereign. In this way, Hobbes' speech act "move" ensures that prudential knowledge could always be the empirical confirmation of his rationally constructed jurisprudence, even though it does not always confirm, of course. 659 The past should have this effect because the "common law mind" has a 656 See, A Dialogue, pp. 162-163.657 "To The Readers", The History of the Grecian War Written by Thucydides, E.W. 8, p.ix.658 A Dialogue, p.159.659 See, Quentin Skinner, Reason and rhetoric, pp.7-8,384.

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great susceptibility to these arguments, and Hobbes is aware of this fact. So A Dialogue's use of history answers two different, but overlapping purposes:

(a) Hobbes wants to find the empirical confirmation of his deductive politics and jurisprudence;

(b) He wants to present the political conclusions of his science as conforming to common law expectations.

Because a contemporary English reader of a treatise on law would tend to consider the past as authoritative, the second purpose is the main one for Hobbes. So in A Dialogue he considers the rhetorical enterprise more important than finding the empirical confirmation of his science of politics and jurisprudence. This enterprise explains why the Philosopher states:

...Dominion, Government, and Laws, are far more Antient than History, or any other writing...And all this is consonant, not only to the Law of nature, but also to the practice of Mankind set forth in History Sacred, and Pr[o]phane. 660

Factual statements of which history is composed are important in finding the right way of persuading some readers, in order to achieve precise political results, i.e. in order to strengthen the power of the king. This is especially true - and most important for Hobbes in A Dialogue – where the reader regards the past as authoritative: for, the political culture in England was oriented toward the use of history in order to justify any political, or juridical, stand. Accordingly, history here rhetorical in the classical meaning, it is morally edifying and it persuades people who cannot understand science. This is the position held by Aristotle, and much later by Sir Francis Bacon and Hobbes. 661 Aristotle defined the purpose of rhetoric in this way:

Its function [ergon] is concerned with the sort of things we debate and for which we do not have [other] arts and among such listeners as are not able to see many things all together or to reason from a distant starting point. 662

For Aristotle and his classical followers history is a branch of rhetoric which can convince common people who cannot understand philosophy to follow the examples of virtue given by the great men of the past. In the same way, for Bacon the function of rhetoric - which makes use of examples taken from history - is to harmonize the arguments of the orator with the disposition of the listener. So in one of his most famous sentences Bacon declared:

The dutie and Office of Rhetoricke is, To apply Reason to Imagination, for the better moving of the will... 663

660 Ibidem, pp. 158-159.661 See, Conal Condren, "On the Rhetorical Foundations ofLeviathan", History of Political Thought, XI, (1990), 703-720, p.715662 Aristotle On Rhetoric, 1357a, p.4I.663 Francis Bacon, Of the proficiency and advancement of Learning, p.66.

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As pointed out by Quentin Skinner's recent book, Hobbes was deeply influenced by the rhetorical culture characterizing Renaissance humanism. 664 This is true even though from the first writings he consistently harboured many anxieties about the danger posed by the "art of rhetoric" on the proper conduct of public life. 665

Accordingly, one feature which is most evident in The Elements of Law and De Cive, but which remains constant in Leviathan and in the later works, is the fact that Hobbes, even though he does not express any open appreciation for rhetoric, still makes use of it by referring to a number of anti-rhetorical arguments originating from classical antiquity which the Roman rhetoricians had supposed themselves to have overcome. 666 By following this method, A Dialogue, like Behemoth, and the previous works, criticizes certain characteristics of eloquence by pointing out that it is often employed not in the service of truth, that is in order to persuade the people not to dispute or suppress "science", but in order to manipulate popular assemblies for factional ends. 667 This is an old theme, i.e., Socrates versus the Sophists. Hobbes' introduction to Thucydides used these anti-rhetorical arguments in order to criticize the ancient rhetorician Dionysius Halicamassius:

Amongst the virtues of an historiographer, he [Dionysius Halicamassius] reckons affection to his country; study to please the hearer; to write of more than his argument leads him to; and to conceal all actions that were not to the honour of his country. Most manifest vices. He was a rhetorician; and it seemeth he would have nothing written, but that which was most capable of rhetorical ornament. 668

In A Dialogue Hobbes accuses the lawyers of considering as "virtues" the same "vices" for which he once criticized Dionysius Halicamassius. He accuses them of wresting "the sense of words", and the law, to suit themselves. So the Philosopher states:

A Pleader commonly thinks he ought to say all he can for the Benefit of his Client, and therefore has need of a faculty to wrest the sense of words from their true meaning; and the faculty of Rhetorick to seduce the Jury, and sometimes the Judge also, and many other Arts, which I neither have, nor intend to study. 669

In this way, Hobbes is persuading the reader that he (Hobbes) would not use the "Arts" of the orators. 670 Leviathan argued that rhetoric is often the cause of sedition and sometimes covers "Absurd assertions".671 Nevertheless, the classical education of

664 See, Quentin Skinner, Reason and rhetoric, p.250.665 See, Ibidem, p.343.666 See, Ibidem, p.286667 See, Ibidem, pp.286,427.668 "Of the Life and the History of Thucydides", The History of the Grecian War, E. W. 8, p.xxvi669 A Dialogue, p.56.670 Ironically, A Dialogue was posthumously published together with The Art of Rhetoric. In regard to this, Cropsey says that the two were published together, but does not mention that the latter was actually written by Dudley Fenner, and wrongly attributed to Hobbes by William Crooke. See: Walter J. Ong, "Hobbes and Talon's Ramist Rhetoric in English", Transactions of the Cambridge [England] Bibliographical Society, 1, pt. 3 (1951), pp. 260-269.671 See, Leviathan, Part I, chap.l 1, pp.164-165; also, chap.5. pp.114-15.

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Hobbes made him ready and able to use any rhetorical argument whenever necessary. In fact, he even wrote a digest of Aristotle's Rhetoric!. 672 Indeed, as pointed out in Quentin Skinner's recent book, one of the central teachings of this humanist education was that the findings of reason must be reinforced by the power of eloquence if they are to achieve their fullest persuasive effect. 673 So Hobbes' rational jurisprudence uses historical examples in the Aristotelian fashion as a rhetorical device in order to convince the common law minded English readers of the validity of his views about substantive concerns. This method is consistent with Hobbes' introduction to Thucydides, where he states:

Now for his [Thucydides's] writings, two things are to be considered in them: truth and elocution. For in truth consisteth the soul, and in elocution the body of history. The latter without the former, is but a picture of history; and the former without the latter, unapt to instruct. 674

In regard to this, Skinner indicates the reasons why Hobbes followed this method in early works such as the introduction to Thucydides, and in late works such as Leviathan, Behemoth and A Dialogue. In the former it is because of his humanist education, in the latter also because the civil wars convinced him that "science" by itself, without employing the techniques of "eloquence" in the service of its "truth", can scarcely hope to produce the least effect. 675 I will next indicate the substantive concerns (i.e., the "truth") of Hobbes's "elocution" in A Dialogue.Hobbes wants to make as convincing as possible the case in favour of submission to absolute sovereignty. 676 Supposedly, it is always better to obey the King than to imperil our lives, unless of course the King himself systematically imperils our lives, in which case we always maintain by the law of nature the right to defend ourselves. The more citizens understand this idea, the less likely become sedition and disorder. Those who behave accordingly contribute to the country's safety, while at the same time they protect their own interest. So the Philosopher states:

For the Subjects...have no title at all to demand any part of the Land, or anything else but security, to which also they are bound to contribute their whole strength, and if need be, their whole fortunes: For it cannot be supposed that any one Man can protect all the rest with his own single strength: And for the Practice, it is manifest in all Conquests, the Land of the vanquished is in the sole power of the Victor, and at his disposal. 677

In A Dialogue Hobbes accepts that no civil society can survive without the approval of the people. In order to seek this approval the Philosopher tries to show the merits of Leviathan's model of the state: he tries to blame the theories supported by those standing against this model for all the periods of disorder ever occurring in the country. For this reason, he says to the lawyer:

672 Thomas Hobbes, A Briefe of the Art ofRhetorique (London, Published by Andrew Crooke, at the Green Dragon without Temple Bar, 1637), "The Whole Art of Rhetoric", E.W. 6, pp.419-510.673 See, Quentin Skinner, Reason and rhetoric, Part. II, chap.6.674 "Of the Life and History of Thucydides", The History of the Grecian War, E. W. 8, p.xx.675 See, Quentin Skinner, Reason and rhetoric, pp.426-437.676 For this reason, the Philosopher tries to undermine the authority of Parliament. A Dialogue attributes to the people's representatives an advisory function only at the sovereign's discretion.677 A Dialogue, p. 160.

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You have heard perhaps that some Lawyers, or other Men reputed wise and good Patriots have given out, that all the Lands which the Kings of England have possessed, have been given them by the People, to the end that they should therewith defray the Charges of their Wars, and pay the wages of their Ministers, and that those Lands were gained by the Peoples Money; for that was pretended in the late Civil War, when they took from the King his Town of Kingston upon Hull; but I know you do not think that the pretence was just. 678

This passage recalls the views on the origin of the civil wars fully expressed in Behemoth. Butin A Dialogue Hobbes also tries to show that Leviathan's model of the state corresponds to the past practice of English constitution, and that this is an additional reason for those who accept the authority of the past for accepting it. The Philosopher explains how all the English lands were conquered by the kings of England, who distributed them to some citizens under precise conditions.

And was not all the Land in England once in the hands of William the Conqueror? Sir Edw. Coke himself confesses it; therefore it is an universal truth, that all Conquer'd Lands, presently after Victory are the Lands of him that Conquer'd them. 679

Once again the purpose of this historical explanation is to deny the existence of any ancient constitutional rule defending the subjects' properties against the authority that has the sovereign power. In order to show the legitimacy of the kings' acquisition of their sovereignty over the lands of the country, Hobbes has no objection to considering the Norman Conquest as the ancient origin of the power of the existing monarch. In A Dialogue Hobbes wants to express himself more persuasively than before. Supposedly, his purpose is to indicate those conditions likely to improve the present political situation. This should give some grounds for optimism about the future. It is necessary to present an example that the sovereign can imitate in order to govern according to the interest of the people. Such is the cause of Hobbes's interest in history.Why is Hobbes' praise of English history fully elucidated only in A Dialogue, and not in his previous writings? The answer seems to lie in the somewhat different situations in which these works were written. In the 1640s, no-one could agree on the nature of the English past. Before and during the civil war both the Royalists and the Parlamentarians referred to English history in order to justify their political claims by appealing to custom. 680 But Hobbes considered references to custom as the cause of disputes "both by the Pen and the Sword". Also, Hobbes' view of science then explicitly excluded history, or any "record of fact" as having the authoritative role which the common lawyers attributed to "Precedent".681 He maintains that in scientific reasoning historical facts have only a role of confirmation. Thus, although the science of understanding commonwealths may only be aimed at through "ratiocination", once it is gained, history is applied both critically and interpretively to check the conformity of the world to our definitions of it. Accordingly, although as I have 678 Ibidem, p. 161.679 Ibidem, p. 160.680 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.54-55.681 See, Leviathan, Part I, chap. 11, pp. 165-166.

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argued in the first chapter of the thesis, even the early Hobbes recognized the importance of rhetoric, The Elements of Law and the other books concerned with political philosophy written between 1640 and 1651 when Leviathan was published, share a common feature. They all try to outline a systematic and rational theory of government. Such a task has precedence over any other consideration. Herein lies also the purpose of the rhetorical device which is supposed to convince the readers that Hobbes' opinions concerning law and policy correspond to the rules and infallibility of reason. Supposedly, Hobbes' method is the immediate means - as well as the long term one – for maintaining or restoring internal peace.The situation during the reign of Charles II seems different from the one before. The problem is not that of preventing civil wars at any cost by advocating unconditional obedience to the present sovereign, whoever he may be. Therefore, as Postema rightly notices, "very little, for example, is said about the state of nature in the Dialogue", at least in comparison with the previous works. 682 Perhaps this is because the natural condition no longer represents the most immediate threat. Now, however, the Philosopher must indicate conditions for a long lasting peace which can satisfy as many people as possible. So the rhetorical arguments become even more important than before. Hobbes has already created a philosophical system. Now was the time to make his constitutional theory acceptable to the political establishment, and to the country at large as well. This may be the reason why A Dialogue seems more concerned than Hobbes' previous works with the rhetorical task of pleasing the sensibility of the contemporary English readers. Accordingly, such a search for public approval could also explain the Philosopher's appeal to the example of the Anglo-Saxon, and Norman past, both equally popular - but with different parties. This appeal is now possible because Hobbes thinks that there is now a consensus about the "constitutional" past. The bulk of the political nation is "royalist" of some kind - mostly "constitutional". The proto-Whigs usually appealed to the example of the Anglo-Saxon past. The proto-Tories tended to consider the Normans as their model, although the feudal law was eventually seen to apply to Saxons as well as Normans. So Royal Ancient Constitutionalism increasingly became Feudal Legalism.In fact, in England, feudal law becomes the juridical instrument used by royalists to vindicate the authority of the king against the limitations posed by Parliament and by the judicial system. Hobbes is aware that the crucial element of feudalism is not the loss of rights or liberty of the subjects, but the feudal relationship between the holder of a fief and the lord - holding in return for knight service. As Cropsey points out, A Dialogue, in spite of its remarks about the disadvantages of being ruled by foreigners, considers the way in which England was governed by William the Conqueror to have embodied the characteristics of good kingship. 683 As a result, Hobbes may seem to be riding two horses here. The first is ancient constitutionalism - a predominantly parliamentarian idea based on common law, and sustained by the common lawyers. The content of ancient constitutionalism is mixed monarchy, its form is custom. The second is the royalist ideal of centralized absolute kingship. But, in fact, Hobbes still advocates only royal absolutism. A Dialogue never really appeals to ancient constitutionalism except by identifying the ancient constitution as absolute monarchy. Indeed, Hobbes' most important aim is to confute the ancient constitutionalism employed by Parliament and common lawyers in opposition to the royal absolutism advocated by the Philosopher. The Philosopher tries to undermine the common lawyers by using selected historical arguments. In this way, history is supposed to 682 See, Gerald J. Postema, Bentham And The Common Law Tradition, p.46.683 See, A Dialogue, pp. 160-161; also, Joseph Cropsey, Introduction to A Dialogue, pp.43-46.

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confirm Hobbes' mainly logical case in favour of absolute monarchy. So the example of William the Conqueror confirms the historical existence of absolute sovereignty. Allegedly, what William in his private capacity assigned from the conquered lands to some people, became the juridical origin of the present land ownership:

It cannot therefore be denyed but that Land which King William the Conqueror gave away to English-men and others, and which they now hold by his Letters Patents, and other conveyances, were properly, and really his own, or else the Titles of them that now hold them must be invalid. 684

This is an important issue; for, together with justifying the king's right to levy a tax on properties, it also requires the specific duty of allegiance to the existing sovereign from the owners of land. Surely this testifies to the influence of the then recently begun research into the history of feudal law. Indeed, Hobbes knew antiquarians such as Aubrey who were discovering in the history of royal ancient feudalism arguments in favour of absolute monarchy for those who regarded the past as authoritative. 685

Royal absolutism and the appeal to the past then began to fit together. The specific circumstances of the restoration period encouraged this discovery. In fact, after 1660 monarchy had triumphed, and royalists were looking for historical arguments to give juridical justification to their victory against their remaining opponents. A Dialogue's praise of English history reflects the situation after 1660. Hobbes did not choose this method in his earlier works for two reasons. The first reason is theoretical, i.e. because of his criticism of "knowledge of fact". The second reason is because between 1640 and 1660 Hobbes did not consider feudal law to be apolitically suitable argument in favour of absolute sovereignty; but it had become so after the restoration.

Concluding remarks

Because A Dialogue's appeal to history corroborates conclusions reached independently by deductive reasoning, it is not contrary to Hobbes' scientific method, even though as I have argued in chapter three of the thesis, this corroboration is not always convincing. Within scientific jurisprudence historical statements can only constitute confirmatory or disconfirmatory instances. In this way, Hobbes' rhetorical enterprise resolves within itself a tension between his philosophical approach and his attempt to use the feudal law argument that is potentially, but not in fact, very damaging to the logic of his case. A Dialogue represents the completion of Hobbes' science of politics because it presents the common law and history as really agreeing with and exemplifying the conclusions of Leviathan's science of politics. Hobbes, indirectly, calls for changes in the English constitutional order - the introduction of absolute sovereignty, and of law as the command of the sovereign - to be made by advocating the application of "reason" to jurisprudence as a science, and empirically confirmed by their successful application in history, i.e. confirmed by the knowledge of history. The empirical confirmation is justified by history allegedly showing that the undivided sovereignty of the king was the best form of government for peace and security, while the attempt to share his power with Parliament has led to civil war.

684 A Dialogue, p. 161.685 In regard to this, Aubrey was aware of the works of Sir Henry Spelman and Sir William Dugdale on England feudal history. See, Oliver Lawson-Dick ed., Aubrey's Brief Lives, "Sir Henry Spelman", p. 281.

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CHAPTER VI

HISTORY IN THE COMMON LAW AND IN A DIALOGUE

Prelude and introduction

In this chapter I will compare on the one hand how Coke and Hale make use of history and on the other hand how Hobbes does, highlighting the role of A Dialogue in the history of legal thought and of Common Law itself. I will make some detailed characterization of the "Common Law mind" discussing whether and in what sense it is traditionalist, customary, or traditional, that is whether it considers the past: (a) as authoritative per se; (b) as authoritative because it embodies experience, and if so how it does that; (c) in what sense it is reasonable as Common Law claims. In Hobbes' view common law must be "prudence" because of the status of the past and of the characteristics of "reason".The importance of this contrast that emerges between Hobbes' rational jurisprudence in A Dialogue and common law cannot be fully appreciated without acknowledging that both are significant for the rise of English and American constitutionalism as well as of utilitarianism and legal positivism. 686 Indeed, Hobbes' natural rights theory, which his science of politics and jurisprudence stems from, and which is based on abstract, rational principles and stresses individualism, constitutes the model which Locke and the subsequent liberal political theory, which is committed to a scientific method to be applied universally, confront. 687 Common law is grounded in precedent and local tradition as well as reason; it stresses community, and is more contextual and historical, more flexible yet more respectful of the wisdom of tradition or experience, less individualistic and more emphatic about responsibility than is the liberal philosophic tradition. 688 Nevertheless, the two schools of thought are not rigidly separated, and both largely concur in shaping English and American constitutionalism. 689 One of the underpinnings of this constitutionalism lies in the belief in an ancient constitution from which the Anglo-Saxon national identity derives. 690 A Dialogue, by challenging this belief, contributes to its evolution. 691 This shows that the legacy of Hobbes and of his Dialogue of the Common laws is important in setting a trend towards subjective utility, and hence towards a kind of informal and consequentialist utilitarianism which will deeply influence the history of legal and political thought. Nevertheless, the approach of the common lawyers always remains different from that of Hobbes. I will next analyse this process by reviewing the role of history in A Dialogue and comparing it with Coke.

686 See, James R. Stoner Jr., Common law and liberal theory: Coke, Hobbes, and the origins of American constitutionalism, p.4.687 See, Ibidem, pp.4-5.688 See, Ibidem, p.6.689 See, Ibidem, pp.5-6.690 See: Gerald J. Postema, Bentham and the Common Law Tradition, Part I, chap.l, pp.27-29; J.G.A. Pocock, The Ancient Constitution and the Feudal Law, Part One, chap.II, p.46.691 See, Gerald J. Postema, Bentham and the Common Law Tradition, Part I, chap.2, pp.60-61,77.

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History in the Common Law and in A Dialogue

In spite of his claims to the contrary, the Philosopher founds his ideas neither on knowledge of history, nor on understanding the statutes. In regard to this, as we have seen in the previous parts of the thesis, his criticism of "legal reason" as embodied community experience is a denial of the juridical value of wisdom which depends on Leviathan's science of politics rather than on a real study of English legal history. For this reason, D.E.C. Yale has argued that Hobbes fails to interpret English constitutional history correctly. 692

A comparison with Coke and Hale helps clarify this, but this is to misconceive Hobbes' enterprise: his jurisprudence is critical not expository. Hobbes relies not on historical or legal reality, but on the coherence between his statements about law and Leviathan's methodological principles. For example, only some generic references to Bracton and Fleta support Hobbes' claim that in England the king historically and by law had the right to be supreme judge. 693 Hobbes, although he does not completely rule out in theory the possibility of historical disconfirmation, in fact believes that history can only confirm his logical assumptions. As a result, we have a sometimes fictional account of legal history connected with - and limited by - a philosophical deduction. The clarification of what sovereignty implies is one matter, but whether it achieved an actual realization in a particular society is another. The theory expressed by A Dialogue is deductive and does not necessarily reveal better than any other the actual workings of law in England, particularly in comparison with Coke. For example, the Philosopher accuses Institutes of wrongly rendering actions as criminal. However, as I pointed out in Part II of the thesis, Coke is right: A Dialogue's refusal to consider costly apparel, costly diet, costly building, and flattery of the sovereign as crimes does not have any foundation in the study of the relevant laws. 694

Nevertheless, as Holdsworth has pointed out, The Institutes' use of history often seems itself rather uncritical. 695 It is too hasty in assuming that the older the sources, the better the law as a source of validity. But if this is in fact a legal principle which is applied in the courts then it would not be right for Coke to criticise this in a work which purports to describe the English legal system. Holdsworth treats Coke's claims as contingent historical claims. Pocock suggests that they are axiomatically true for common lawyers. 696 There is more to this than empirical dispute. Coke, like all the common lawyers, preserves some conceptions held during the past, which are still relevant, or acquire relevance in a new political situation. We need to distinguish here between Holdsworth's claim that the effect of Coke's postulations was to justify innovation by asserting that it was continuity, and the claim that Coke himself consciously did so. Hobbes was doing this as a rhetorical ploy. Referring to ancient slogans serves to legitimize only in a culture where reference to antiquity is itself a powerful source of legitimacy. This is the case in England, confirmed by the fact that the Tories did not differ from the Whigs in their general praise for customs and tradition. 697 Accordingly, referring to ancient slogans contributed in the past and

692 See, D.E.C. Yale, "Hobbes and Hale on Law", The Cambridge Law Journal, Vol.31 (1972b), pp. 121-156, pp. 140,147.693 See, A Dialogue, pp.74-75.694 See, Ibidem,p.l39.695 See, William Holdsworth, A History of English Law, 16 Vols. (London, Methuen & Company, 1922-19 Vol.V, p.472.696 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp. 37-38.697 See: Ibidem, pp. 148-149, 213.-214, 217; and pointing out that ancient constitutionalism was

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contributes even now to the legitimation of important institutional developments. As pointed out by Pocock, such a way of justifying important changes perpetuates itself without anyone's conscious decision, even Coke's himself or that of the common lawyers as a group, and most significantly even without the approval of the legislative authority of the king-in-parliament. 698 This can happen because according to Coke's interpretation of common law, which was to acquire widespread influence, the fundamental requirement for a rule to become a law or for a decision to mark a new departure in the law is that it is taken up into the practice of the community. 699 The result of this has been that only time can tell whether a rule or a change of rule becomes a law, because only time - i.e. practice and use over time- serves to validate it. 700

The idea of the supremacy of law, even in the face of the sovereign's displeasure is one example of such a principle. 701 All this is not the result of a conscious ploy made by Coke. Hobbes, on the contrary, analyses the constitutional order partly to praise the practical merits of his own legal and political conceptions, partly to justify them. The former means looking for rhetorical arguments in favour of his scientific politics and jurisprudence, while the latter means looking for its empirical confirmations; there is continuity between the two. For example, as I have already pointed out in Part II of the thesis, A Dialogue's historical confirmation of the right of the king to levy money for maintaining soldiers, and for his right of appointing magistrates is mostly rhetorical, in the sense of being a generic example based on what was allegedly shown by the recent civil wars, namely that where people have departed from these principles chaos has followed. 702 But it still complements the theoretical arguments in Leviathan in view of the hypothetical status of Hobbes' theory. Hobbes is not interested in the constitution's historical development. On the other hand, only Harrington and few others like Dugdale and Filmer truly would have been in the mid-seventeenth century, even though like Hobbes they were not interested in academic history, i.e. in historical knowledge per se, but in having recourse to it in order to justify their political positions. 703

What I have said so far must be understood in relation to the fact that Hobbes in A Dialogue was trying to confute the common lawyers on their own ground, i.e. by making use of some arguments based on the authority of the past. Hobbes more resolutely chose this tactic after 1660 because of his increasing awareness that in England one prevalent way in which intellectuals and members of the legal and political establishment made recourse to history was by referring to custom. He knew that this recourse had important political consequences for the relationship between authority and the individual contrary to Hobbesian absolute sovereignty, especially bearing in mind that custom - as far as legal and constitutional matters were concerned - was expressed in the language of common law. But Hobbes chose this

common ground for the Tories and the Whigs in the early to mid-eighteenth century, Gerald J. Postema, Bentham and the Common Law Tradition, Part I, chap.l, p.29.698 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.36,37,153,189-190,234-235.699 See, Gerald J. Postema, Bentham and the Common Law Tradition, p.5.700 See: Sir Matthew Hale, The History of the Common Law of England, Edited and with an Introduction by Charles M. Gray (Chicago, The University of Chicago, 1971), p. 17; also William Blackstone, Commentaries on the Laws of England, 4 Vols. (Oxford, 1765-1769, Facsimile ed. Chicago, Chicago University Press, 1979), Vol.1, pp.64,68.701 See, William Holdsworth, A History of English Law, Vol. V, p.480.702 See, A Dialogue, pp.65-67.703 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp. 182-183.

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tactic also because he knew that Royalist and common law Parliamentarians alike, in the aftermath of the Civil War, were vulnerable to a number of different criticism of which in A Dialogue he selectively makes use in order to argue in favour of his absolutist conception of sovereign power. These derived in part from a more sophisticated historical knowledge - historiographical efforts were intensified by the conflict - and in part from more detailed philosophical analysis of the idea of custom, also a product of ideological debate.Radicals pointed to major jurisdictional discontinuites such as the Norman Conquest. As the leveller Richard Overton complained, the fact of the Conquest meant that "our very Laws were made by conquerors".704 The discovery of the feudal law suggested - encouragingly for Royalists and for Hobbes in A Dialogue - an account of English legal history which was impossible to square with those of the common lawyers. The discoveries were originally made by the antiquarians Sir Thomas Craig in Scotland and Sir Henry Spelman in England, both working before the Civil War. Their arguments were first used on the Royalists' behalf by the author of The Freeholder's Grand Inquest who pointed out that the Commons were not part of Parliament before Henry I, nor regularly until Henry III. 705 But the Royalist deployment of them was made by the Restoration ideologue Robert Brady, Keeper of Records at the Tower of London, a post he lost to the Whig historiographer William Petyt after the Glorious Revolution. 706

A Dialogue anticipates some of these arguments. This is because to the mind of an intellectual like Hobbes, if indeed there were any, the construction of a society without allodial property, save for the king, through oaths of homage and fealty, bore an encouraging similarity to his own modem absolutist contractarian theory. So Pocock in a significant comment on Hobbes' use of history in A Dialogue, says:

Thanks to the centralised nature of the English monarchy, it was possible to perform the remarkable intellectual feat of making feudalism an argument for sovereignty. 707

However, even this "remarkable intellectual feat" must be understood in terms of the fact that A Dialogue does not really represent a comment on English laws, but rather a radical proposal for their reformation not based on "prudence" but reconciled with it. In the light of this, I will now move on to a review of what Hobbes is doing.Hobbes does not really endorse the application of feudal law as opposed to the other existing laws, but proceeds more cautiously: rather than explicitly criticizing the existing laws, he accuses Coke of misinterpreting them. Again this is part of his rhetorical enterprise. However, the Philosopher's claim that Coke does not state the laws, but establishes his private definitions (as for Suicide, Robbery and Theft,

704 Richard Overton, The Remonstrance of Many Thousand Citizens (1646), reprinted in D.M. Wolfe, Leveller Manifestoes (London, 1967), p. 124.705 Authorship of The Freeholder used to be attributed to Filmer, but the case recently made for Sir Robert Holbourne stresses his more rigorous historical criteria of how a practise becomes identification of a law,criteria applied in the Freeholder itself. These are that a practice "must be constant and continual" and "mustnot be within time of memory". See: C.C. Weston, "The Case for Sir Robert Holbourne Reasserted", History of Political Thought, VIII, no.3 (1987), pp.447-449.706 Brady, Petyt and Atwood had contested the extent and significance of the Norman Invasion during the 1680s. See: J.G.A. Pocock, "Robert Brady, 1627-1700. A Cambridge Historian of the Restoration", Cambridge Historical Journal, X, no.2 (1951), pp. 186-204; also The Ancient Constitution and the Feudal Law, The Brady Controversy", chap. viii, pp. 182-228.707 Ibidem, chap.vii, p. 168.

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Breaking in, and other felonies) does not seem well founded. It is an attempt to highlight the continual necessity of making sure that legal definitions always effectively correspond to the real intention of the sovereign, rather than to custom or precedent. 708 Unlike, or perhaps much more than, Coke and Hale, Hobbes is a critic of his contemporary constitutional order.The Philosopher is at odds with the main character of the English juridical structure in a quite remarkable way. 709 In England, the judicial system had at the time in question a rather diverse structure. It tended to play down the influence of general rules by providing a variety of specific proceedings which applied to each type of case. For instance, the same crime most likely received a different punishment according to which kind of court had the competence to hold the trial. Moreover, in a way, the empiricist mentality influenced even jurisprudence, and the common law system derives from an empiricist attitude. 710 In England, the totality of individual cases characterizes the nature of the legal system, not vice versa. 711 Common law does not tend to organize society according to abstract rules. 712 On the contrary, it tries to warrant the stability of the country by defending its traditions and social institutions. Perhaps, in a sense, the system always remains conservative, even when it goes through changes.The real target of Hobbes' criticism of the Institutes is common law itself, as custom that limits the sovereign's will. Indeed, while common law was an expression of the rules of civil society, not a result of the attempt made by the sovereigns to change or influence them, the Philosopher considers law as the command of the sovereign and has a rationalist conception of jurisprudence. 713 This is due to the fact that Hobbes has a different attitude from the "Common Law mind".714 He assumes that no civil society can exist by merely following custom without clearly defined legal obligations established, and imposed, by the sovereign. In fact, allegedly, the presence of law - first of all statute law - gives unity and character to every civilized group of people.For Hobbes, it is not so much tradition, or nature, that determines the institutions of a country, but the requirements of legislation. Hobbes' juridical position is opposite to what influenced Hale, i.e. Aristotle, Cicero, and Bodin who consider law as following from the historical and geographical conditions of each particular place. 715 In regard to this, later, the position of Montesquieu also derives from those of Aristotle and Bodin. 716 Accordingly, L'Esprit des Lois argues against French absolute monarchy, praising eighteenm-century British government because it separates powers. 717

Hobbes would have regarded Montesquieu as a typical disciple of Aristotle, Cicero, and the Romans whose ideas engender the "habit (under a false shew of Liberty,) of

708 See, A Dialogue, for instance, pp. 116-122.709 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.149, 162.710 See, C. Fried, "The Artificial Reason of the Law, or What Lawyers Know", 57, Texas Law Review, 60 (1981), pp.35-58.711 See, Gerald J. Postema, Bentham and the Common Law Tradition, p. 31.712 See, R. Stone, "Ratiocination not Rationalization", Mind, 74 (1965), pp. 463-482.713 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp. 149,162-163.714 See, Ibidem, chaps.II-III.715 See, George Sabine, Thomas L. Thorson, A History of Political Theory, p.510.716 See, Charles Montesquieu, Baron de la Brede, L'Esprit des Lois (Geneva, Barillot, 1748, Edited by David Wallace Carrithers, Berkeley, University of California Press, 1977), Books XIV-XLX.717 See, Patrick Dunleavy and Brendan O’ Leary, Theories of the State (London, The Macmillan Press, 1987), p.14.

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favouring tumults".718 Accordingly, A Dialogue, which always vindicates Leviathan's positions, takes the opposite stand from Aristotle, and later that of Montesquieu; law is simply the rational will of the sovereign.But in regard to this, most importantly, the fact that for Hobbes law is the rational will of the sovereign ran against the main claim invariably made about common law, i.e., that it was the embodiment of reason. Of course, to say this about a body of purely customary beliefs and practices is on the face of it a strange claim, but it was elaborated in a series of polarities which becomes expressive of some characteristically British attitudes towards politics and the impact of individuals on it.The first polarity is between individual reason and group reason, but it in turn rests on a presupposition about the utility of reason which, in view of the general subject of my thesis which concerns the relation between reason and history in Hobbes, needs to be made explicit. It is made so in A Dialogue in order to vindicate royalist legal historiography as exemplifying Hobbesian political philosophy against the common lawyers.Therein, taking issue with Coke, Hobbes points out that to rest law on reason, and to identify this with individual reason is a recipe for anarchy. Accordingly, the Philosopher states:

I find my own reason at a stand; for it frustates all the Laws in the World: for upon this ground any Man, of any Law whatsoever may say it is against Reason, and thereupon make a pretence for his disobedience.719

Here indeed Hobbes was right. In fact, the appeal to reason was continually made by radicals in the Civil War on the authority of Coke (and later by the French revolutionaries, hence Burke's famous critique of them), and Hobbes may have paid attention to the Levellers. 720 Hobbes' point is that individual rationality is indeterminate, even though not all interpretations are equally valid and true. So he admits the existence of "true" interpretations, but only given the fact that "True and False are attributes of Speech, not of Things".721 Yet to say, as common lawyers claim, that rationality resides in custom is clearly untrue since we debate the rationality of customs. So the Philosopher tells the Lawyer:

Now as to the Authority you ascribe to Custome, I deny that any Custome of its own Nature, can amount to the Authority of a Law: For if the Custom be unreasonable, you must with all other Lawyers confess that it is no Law, but ought to be abolished; and if the Custom be reasonable, it is not the Custom, but the Equity that makes it Law. 722

Furthermore, to claim, as the common lawyers themselves do, to have a unique insight into the rationality of custom is, he suspects venal special pleading. Their reason is no different from anyone else's, their knowledge could be gained in a couple

718 Leviathan, Part II, chap.21, p.267.719 A Dialogue, pp.54-55.720 See: David Wootton, "Leveller democracy and the Puritan Revolution", The Cambridge History of Political Thought, pp.412-442, p.442; also, Edmund Burke, Reflections on the Revolution in France (London, Printed for J. Dodsley, in Pail-Mall, 1790. Modern edition: Harmondsworth, Penguin Classics, 1986), for example, pp.171, 183721 Leviathan, Parti, chap.4, p. 105.722 A Dialogue, p.96.

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of months. 723 Despite the rationalism of his method, Hobbes' view, expressed in his Questions Concerning Liberty Necessity and Chance printed in 1656, is that the claim that reason is a criterion of the content of true law "is an error that hath cost many thousands of men their lives." 724 In A Dialogue his answer to the problem of rational indeterminacy is the insistence that "It is not Wisdom, but Authority that makes a Law." 725 In fact, Hobbes believes that only absolute sovereignty, and not the "reason" embodied in any law, can save lives. Indeed, what reason reveals is the need to have an authoritative determination, not what the nature of that determination was. This idea was already in the Questions Concerning Liberty Necessity and Chance, where Hobbes stated:

I think rather that the reason of him that hath the sovereign authority, and by whose sword we look to be protected both against war from abroad and injuries at home, whether it be right or erroneous in itself, ought to stand for right to us that have submitted ouselves thereunto by receiving the protection. 726

On Hobbes' view all reason is the reason of human individuals, and individual reason is inherently indeterminate whilst law must be determinate. So only absolute sovereignty, but not "reason" by itself, can prevent the fighting caused by conflicting views and save many lives. Reason cannot, therefore, be the basis for law.This point is raised here to establish the position which the next generation of common law thinkers attacked, and in doing so developed a peculiar notion of reason as custom. But it is also worth noticing that Hobbes' argument has established subjectivity in another potential ground of political argument, that of reason.However, there is a sense in which what common law does with custom, and what Hobbes does with his criticism of "the common law mind", share a role in the way the perception of the relationship between the individual and the state started changing from the seventeenth century, i.e.in the growing recognition of the subjective individuality of the citizens as autonomous social agents within the state, which is one feature "of the rise of individualism and the modern state", and grew out of the struggles between king and Parliament. I shall next explain the role of common law, and of Hale's critique of A Dialogue in this recognition which has far reaching consequences.The idea that English common law goes far back - time out of mind, as the common lawyers put it - as a deliberate political stance it dates from the early seventeenth century. 727 It was more or less self-consciously articulated by a number of jurists, most famously Sir Edward Coke, in response to a growing arrogation of power by the political centre. 728 Against the threat of the increasing power of the monarchy, the common lawyers carried the doctrine of an immemorial law or parliament to the point of denying that these had originated by human action or at a fixed time lest they be

723 See, Ibidem, p.56.724 The English Works of Thomas Hobbes, Vol.V, p.176.725 A Dialogue, p.55.726 The English Works of Thomas Hobbes, Vol.V, p.176.727 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p.36.728 See, Ibidem, p.37.

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subject to the power of a human sovereign, i.e. of the king. 729 In regard to this, Gerald Postema explains what the common lawyers did by stating:

Against the spreading ideology of political absolutism and rationalism, Common Law theory reasserted the medieval idea that law is not something made either by king, Parliament, or judges, but rather is the expression of a deeper reality which is merely discovered and publicly declared by them...Common Law theory gave this medieval doctrine a distinctively historical twist. For the deeper reality manifested in the public statutes and judicial decisions was not a set of universal rational principles, but rather historically evidenced national custom. 730

So, against the attack of Hobbes' political absolutism and rationalism, a more sophisticated defence of common law, i.e. the defensive development of custom as adaptation, was constructed by Matthew Hale. In a famous image in The History of the Common Law of England, he likened the common laws to the Argonauts' ship:

But tho' those particular Variations and Accessions have happened in the Laws, yet they being only partial and successive, we may with just Reason say, They are the same English Laws now, that they were 600 Years since in the general. As the Argonauts Ship was the same when it returned home, as it was when it went out, tho' in the long Voyage it had successive Amendments, and scarce came back with any of its former Materials; and as Titius is the same Man he was 40 Years since, tho' Physicians tells us, That in a Tract of seven Years, the Body has scarce any of the same Material Substance it had before. 731

Again, a few pages later, Hale compares the common law to a river which, although it has a source, collects and intermingles with the waters of numerous tributaries so that "it is almost an impossible Piece of Chymistry to reduce every Caput Legis to its true original... Danish ... Norman... Saxon or British Law." 732 But then, importantly, he goes on:

Neither was it, or indeed is it much material, which of these is their Original; for 'tisvery plain, the Strength and Obligation, and the formal Nature of a Law, is not upon Account that the Danes, or the Saxons, or the Normans, brought it with them, but they became Laws, and binding in this Kingdom, by Virtue only of their being received and approved here. 733

This is a significant shift in emphasis on the basis of legitimacy. No longer are the crucial criteria the objective ones of longevity or provenance, but the subjective one of acceptability. This subjective criterion, however, must be understood in terms of the fact that common law was essentially a community law - even when statute-based. So the idea of the common law was, for the English, both one of the sources of the 729 See, Corinne C. Weston, "England: ancient constitution and common law", The Cambridge History of Political Thought, pp.374-411, p.388.730 Gerald J. Postema, Bentham and the Common Law Tradition, p.4.731 Sir Matthew Hale, The History of the Common Law of England, chap.IV, p.40.732 Ibidem, pp.42-43.733 Ibidem, p. 43.

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idea of the national state, and an important way of structuring relations between the state and the individual. In regard to this, the importance of the idea of common law becomes strikingly evident during the Monarch-Parliament struggles of the seventeenth century, when the English ideas of liberty also emerged, and when common law could be presented as the law of the community, against those trying to tyrannise over it. In contrast to Roman, Divine-right, and Hobbesian notions of law as constraint, derived from the imposed will of the ruler, common law was derived from immemorial custom, and it was not conspicuously prescriptive but rather a descriptive abridgement of the common practices of the community. So pervasive was the ideological grip of common-law claim to aboriginality that even when the origins of institutions could be identified with early statutes, these could be dismissed as the mere formalisation or abridgement of already existing practises. 734 The political implications of this were that common law was not imposed by one over or above or outside the ruled community, but was an expression of the will, or identity, or later the genius of the people who had constituted it. So Hale claimed that the common law had "become the Complection and Constitution of the English Commonwealth".735 Sir John Davies, Attorney-General for Ireland, claimed that the common law was "so framed and fitted to the nature and disposition of this people as we may say it is connatural to the Nation." The English had "made their own laws out of their Wisdome and experience (like a silk-worm that formeth her webb out of her self onely)." 736

Common law was considered the expression of liberty, and different from law as the imposition of enacted rules as understood by Hobbes. 737 This explains why on the one hand Coke often uses common law and common right as synonyms, and why on the other hand the Philosopher in A Dialogue criticizes this as an unforgivable mistake. 738

Common law articulated a particular conception of freedom. Firstly, in the sense just suggested, by suggesting such a degree of congruency between whatever appropriately socialised individuals would wish to do, and what the law would require of them, that the law was unlikely to be experienced as constraint. Secondly, by suggesting that the independent existence of a rule-bound, orderly community was not only possible without, but predated the coercive power of the sovereign, common-law thinking suggested obvious limitations to the power of the sovereign. All this is reflected in Hale's critique of A Dialogue, which I will examine next.

Hale's critique of A Dialogue

Matthew Hale wrote the only critique of Hobbes’s jurisprudence by one of his contemporary common lawyers. The fact that Hale is not convinced by Hobbes' reasoning has a general significance. There is in A Dialogue's reasoning something which cannot convince the common lawyers. And if this is true - for Hobbes - derives from the method of the common lawyers which makes them incapable of understanding systematic reasonings. In fact, the common lawyers' conception of law relies more on practical knowledge coming from experience, which for Hobbes

734 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp. 37-38.735 Sir Matthew Hale, The History of the Common Law of England, chap.III, p.30.736 Sir John Davies, "Preface" to the Irish Reports (London, 1674), n.p., quoted by J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.34-35.737 See, Gerald J. Postema, Bentham and the Common Law Tradition, pp. 16, 21.738 See, for instance: Institutes I (London, 1832, Reprint ed., New York-London, Garland Publishing Inc., 1979), fol.l42a; A Dialogue, p.73.

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cannot lead to science, than on the application of the same rational and deductive method of geometry. 739 Hale develops the common law position. He develops a historical conventionalist view- as Pocock argues, he is more Burkean. 740 Hale, in his reply to Hobbes, accepts the vagaries of individual reasoning - particularly in subjects such as morals and politics where men are:

Comonly the worst Judges that can be, because they are transported from the Ordinary Measures of right and wrong by their over fine Speculacons Theoryes and distinctions above the Comon Staple of humane Conversations. 741

He accepts too that certainty in law, is, along with "covenience" a major consideration. 742 Bu this argument is intended to show that a rational case can be made for preferring socially-embodied long-established law over "Some new Theory of my owne tho' I am better acquainted with the reasonableness of my owne theory than with that Law." 743 Socially-embodied laws are both more convenient and yet with difficulty demonstrably so:

...because they are the Production of long and Iterated Experience which tho'it be commonly called the mistriss of Fooles, yett certainly itt is the wisest Expedient among mankind, and discovers those defects and Supplys which no witt of Man could either at once foresee or aptly remedye. 744

Hale in a sense accepts Hobbes' point about indeterminacy; he defies anyone to deduce how the English law of inheritance works. 745 This exemplifies the second polarity developed by the common law, that between abstract reason and experiencing reason. Understanding how the English law of inheritance does work, and the reasons it has developed in the particular way that it has, through accommodation, adjustment and remedy of various difficulties in applying it over time is only available to the lifelong student of the law. According to Hale, A Dialogue's Philosopher and Hobbes himself, as an abstract theorist would not even realise what he failed to appreciate as the collective experience of the community. In this way, Hale is arguing that it is possible to study subjects like Philosophy or say Physics successfully by approaching them deductively from first principles with a bare minimun of reading. However, there are tremendous problems with doing the same with law which, as he claims, refuses to respond to the same a priori tactics. The above argument has already stressed the temporal dimension of collective experience. The stress on this is an innovation of Hale's. The idea of custom is ambivalent; it can stress "that which was continually adapted, or... that which was constantly preserved." 746 Coke and Davies stressed the latter, Hale the former. The stress on preservation involves a more primitive justification in terms of mere 739 See, A Dialogue, pp.53-56.740 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp. 173-174.741 "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", in William Holdsworth, A History of English Law, Vol.V, Appendix III, 499-518, p.503742 See, Ibidem, the sentences that follow.743 Ibidem, p.504.744 Ibidem, p.505.745 See, Ibidem, few sentences below.746 J.G.A. Pocock, The Ancient Constitution and the Feudal Law, p. 173.

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antiquity. But it was logically incompatible with the justification of custom as experience embodied through adaptation. Moreover, it was vulnerable to some powerful critiques. Bentham for example lampooned it in his Handbook of Political Fallacies, as "The Chinese Argument, or The Wisdom of Our Ancestors", pointing out that our remote ancestors, though old to us, lived in the youth of our race. Preferring their experience to ours was in fact preferring innocence to experience, a result of the uncritical association of age with experience, followed by confusing their age as individuals with their position in the life of humankind.Bentham's target was in a sense a straw man. But the sophisticated defence of common law in the hands of men like Hale became immune to this criticism because it denied the unchanging nature of common law, stressing instead its constant adaptation to experience and improvement through trial and error, the shaping and moulding of institutions and practices to their environment, so that older is not necessarily better. This argument retained considerable appeal, finding a place in both Blackstone and Burke.Hale criticizes A Dialogue's application of "reason" to law, which is a specification of the notion of reason applied to Hobbes' science of politics, as too separate from historical experience Hale argues that for Hobbes there exists only one kind of "reason" which is subjective, formal, shared by all men, and applied in the same way to every kind of knowledge. 747 Hale considers this model of reason to be too arbitrary, taken on its own, for helping the judges to apply the laws correctly. Hale, although not being concerned with the historical origin per se of a juridical rule, views jurisprudence differently from Hobbes. 748 His criticism of A Dialogue appeals to the historical wisdom embodied by common law as the principle characterizing the application of reason to the development of the legal system. He also advocates prolonged study of law based on precedent, and practice as a lawyer, as the means of acquiring a rational knowledge of jurisprudence. Hale's point is that law is a convention created by prudence and only induction into that prudential knowledge can generate a full understanding of its conventions. It is this induction which Hobbes does not accept as the correct criterion, i.e., as the scientific basis for a sound juridical position. Hale also disagrees with A Dialogue's political conclusions, i.e., with royal absolutism. Hobbes in fact is closer to the civil-law tradition, which considers law as the command of the sovereign. Accordingly, Hale's Reflections are divided into two parts: the first argues against Hobbes' method, the second against his politics. The first part is entitled In Caput Primum of Laws in General and the Law of reason. 749 In it, Hale focuses on the shortcomings of Hobbes' conception of reason. He does this by distinguishing three conceptions of reason:

(a) Subjective reason, which means perceiving the "fitt Dependence of one thing upon the other";750

(b) The general faculty of gaining knowledge and experience in order to achieve any purpose, which "may be called wisedome, Prudence, or Skill";751

747 See, "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", pp. 500-501.748 See, Ibidem, p.505.749 See, Ibidem, pp.500-506.750 Ibidem, p.500.751 Ibidem, p.501.

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(c) The specific reason which is applied in a different way to each "particular Subject", i.e. to law, geometry, philosophy, etc. 752

According to Hale, A Dialogue merely refers to the first of these kinds of reason. But the judges must not follow only this criterion, but also the other two, and most importantly the specific one tested by a prolonged historical application, and gained by a long study of law, i.e. the third criterion. 753 Here, as James Stoner points out, Hale advocates the application of "Aristotelian practical reason" to jurisprudence. 754

In fact, Aristotle's "Prudence or practical wisdom" joined together reason and the knowledge of particulars coming from experience. 755 The result of Hale's method is to stress "continuity rather than novelty", according to a practical reason which is "greater than custom alone" because, as maintained by Hale, "by common law, unreasonable customs have no legal force." 756 The fact that Hale advocates the application of Aristotle's practical wisdom, which for Hobbes is "prudence" contrary to scientific method, is the reason he disagrees methodologically with .4 Dialogue's juridical ideas. Hobbes, on the contrary, has a distinctly modern notion of reason, the same as the Enlightenment's, the reason that in the analytical sense "breaks apart and reassembles".757 Accordingly, Hale responding to this modern notion of reason, considers the account of the English legal system resulting from Hobbes' premises as erroneous or misleading. The second part of the Reflections has the same title as section two of A Dialogue: "Of Soveraigne Power". These pages vindicate the English constitution, as interpreted by the common lawyers, against Hobbes's theory of absolute sovereignty. 758 Hale argues in favour of mixed constitutionalism. He considers all forms of government, i.e., monarchy, aristocracy, and democracy, as subject to historical modifications leading in most cases to a shared sovereign power. 759 Nevertheless, Hale shares A Dialogue 's view that in England six "Powers of Sovereignty" belong to the king:

1. He hath the only power of makeing Peace and Declareing Warr.2. He hath alone the Power of giveing the vallue and Legitimation to Coyne.3. He alone hath the Power of Pardoning the Punishm of Publique offences.4. From him Originally is derived all Jurisdiction for the Administration of the

Comon Justice of the Kingdom whether Civil or Ecclesiastical, whether Ordinary or Delegate.

5. In him alone is the Power of the Militia of this Kingdome, and the raiseing of Forces both by Land and Sea.

6. In him resides the Power of makeing Lawes. The Laws are his Laws enactedby him. 760

752 Ibidem, p.502.753 See, Ibidem, pp.505-506.754 James R. Stoner Jr., Common law and liberal theory: Coke, Hobbes, and the origins of American constitutionalism, p. 133.755 The Nicomachean Ethics, Book 6, 1140a24-l142al2, pp.209-215.756 James R. Stoner Jr., Common law and liberal theory: Coke, Hobbes, and the origins of American constitutionalism, p. 177.757 Ibidem.758 See, "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", pp. 506-513.759 See, Ibidem, pp.506-507.760 Ibidem, p.508.

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Hale disagrees with the conclusions that Hobbes derives from these "Powers of Sovereignty". He rejects the following views held by A Dialogue:

That there can be no Qualifications or Modifications of the Power of a Sovereign Prince but that he may make, Repeale and alter what Laws he please, impose what Taxes he pleases, Derogate from his Subjects propertie how and when he please. That he alone is the judge of all publique dangers and may appoint such remedyes as he please and impose charges he thinkes fitt in Order thereunto. 761

Hale considers A Dialogue wrong from a juridical point of view, and harmful in politicalterms. 762 In fact, he claims that by advocating royal absolutism, Hobbes undermines the confidence of the citizens in the capacity of the law to protect their liberties and properties against arbitrary decisions of the sovereign. This undermines the mutual trust between "governors" and "governed".763 Hale answers to A Dialogue's statement that the king must have absolute powers in order to prevent foreign invasions by saying that government should not be given, and in fact it has not, a permanent constitutional form "according to Such circumstances as very rarely occurre." 764 Therefore, only in exceptional cases, but not in normal situations, can the sovereign act against the rules of common law. Holdsworth has criticized the above statements of Hale in this way:

[Hale] seems to have thought that the sovereignty, analysed and explained by Hobbes, necessarily meant that sovereignty of the king, which the royalist lawyers of the earlier Stuart period had maintained. 765

This means that, according to Holdsworth, Hale misunderstands Hobbes' own legal positivism confusing it with the position held by the Royalist jurists during the reign of James I, and which later was sustained by Filmer, and by his followers towards the end of the seventeenth century. 766 For Holdsworth, this failure to understand Hobbes' theory of sovereignty by wrongly assuming that he equates the powers vested in the person of the King with the sovereign power of the state itself, is due to the fact that Hale's political conceptions were "of a somewhat mediaeval type".767 However, I do not think that Hale shares this misunderstanding. As Stoner quite rightly points out, the fact that Hale is influenced by theories of natural law does not mean that he has not understood Hobbes, but only that he rejects his method and political positions. 768

The divergence between Hobbes and Hale was a matter of both methodology and politics. This divergence concerned which method to apply to jurisprudence, but was ideological as well. Hale analyses the nature of the English constitution by

761 Ibidem, p.509.762 Ibidem, p.509. See also, Edmund Heward, Matthew Hale, (London, Robert Hale, 1972), p. 137.763 See, "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", p.511764 See, Ibidem, p.512.765 William Holdsworth, A History of English Law, Vol.VI, p.206.766 See, Ibidem, pp.206-207.767 See also, Frederick Pollock, and W.S. Holdsworth, "Sir Matthew Hale on Hobbes: An Unpublished Manuscript", Law Quarterly Review, 37, (July) 1921, pp.274-285, p.284.768 See James R. Stoner Jr., Common Law and liberal theory: Coke, Hobbes, and the origins of American constitutionalism, p. 133

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determining its legal and social bases. Without being a pure historian, he looks as a lawyer at the historical context of each statute. His theory develops by trying to understand the intentions of past people, especially the lawyers and judges. Consequently, acquiring as much erudition as possible becomes the main instrument for understanding the law.

And this Conservation of Laws within their boundes and Limits could never be, unless men be well informed by Studyes and reading what were the Judgements and Resolutions, and Decisions and Interpretations of former ages, and of other Courts and Tribunalls and there bye to keepe a Consonance and Consistence of the Law to it Selfe, wich wold never be done without much readeing, and observation and Study. 769

It is quite different for A Dialogue: the records of past decisions, and the decisions themselves may be irrelevant, or even confusing. The historical method based on experience which the common lawyers praised is likely to cause continual controversies. It relies also on the individual and on the subjective decisions of the judges.In order to make clear this, the Philosopher in A Dialogue states that if Coke's saying nihil quod est contra rationem est licitum generically refers to reason, without specifying the reason of the king, anyone's opinion could lead to disobedience endangering everybody's life. 770 As Macpherson has pointed out, Hobbes thought that "he had deduced from eternal facts of man's nature the one kind of political obligation that would always be necessary and possible".771 Consequently, the Philosopher can assert that the judges must interpret law solely according to a scientific form of reason, as in geometry. The Philosopher attributes to juridical learning the same characteristics "as all other Sciences". This is also shown by the fact that he believes that everybody can apply the same "reckoning" and "signifying" principles of reason - previously defined in Leviathan - to the study of the statutes, and reach the same understanding of jurisprudence as a learned lawyer. 772 The judicial system has to apply the juridical conventions established by the political authority. For Hobbes, it is always necessary to maintain a strict conformity to law, i.e.to the rules established by the sovereign, in the judgements made by the courts. 773 This also means that the judges must obey the intentions of the sovereign, for it is the sovereign's will which provides the principles from which to deduce and establish justice. 774 Quite correctly, Holdsworth sees in this position Hobbes' contribution to the development of legal positivism. 775 On the contrary, according to common law, those applying the laws are supposed to apply precedent even in the case of statute laws. This is because an already rule-constituted community had no need of a Hobbesian sovereign to arbitrate the rules of conduct: although other roles for a sovereign could be acknowledged, there is no reason to yield anything ultimate to him.

769 "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", p.506.770 See, A Dialogue, p.54.771 C.B. Macpherson, The Political Theory Of Possessive Individualism Hobbes to Locke, (Oxford, University Press, 1962), p.88.772 See, A Dialogue, pp.55-56.773 See, Ibidem, pp.74-75.774 See, Maurice M. Goldsmith, Hobbes's Science of Politics, pp.229-231.775 See, William Holdsworth, A History Of English Law, Vol.VI, p.299.

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In regard to this, as Richard Tuck points out, the ideas of Hale are very close to those of Locke. 776 This is true even though it is common to emphasise the peculiarity of Locke's argument in the Second Treatise, in rejecting the historical arguments adopted by Hale in favour of abstractones. 777 Locke himself, in fact, shows how natural law and ancient constitutional arguments complement each other; indeed, they were often used interchangeably not only by Bracton, Fortesque, Coke, Davies and Hale himself, but also by many whigs and radicals such as James Tyrrel and Algernon Sidney. 778 In structure at least, Locke's claim that the contract establishing civil society predated, and was logically distinct from, the act of trust establishing government, has the same effect as the common lawyers' claims that parliament was not a royal creation, and was not dependent on the king's will. 779 This is relevant here because by making this claim Locke's task is not only to refute Filmer's natural subjection theory but also to respond to the contractual absolutism of Grotius, Selden, and Hobbes, most radically endorsed against the authority of common law itself by A Dialogue. 780 Indeed, even though Locke himself most likely did not read A Dialogue and Hale's critique, he was certainly aware of their respective views because Hale was the famous Restoration Lord Chief Justice and because, especially between 1650 and 1700, Hobbes' works and ideas were very widely discussed and criticised. 781

The distinction between a pactum societale and a pactum subjectionis, was a commonplace of the continental natural law tradition with which Locke had familiarised himself. 782 Indeed, in Thomistic natural law theory there was a strong objective basis for right which provided a model both to the common lawyers and to Locke. 783 However, in contrast with Grotius, Selden, and Hobbes, both Locke and the levellers on whom he may have drawn insisted not only that rights had an objective basis in the law of nature but that it was not possible to divest oneself of them by contract. 784 In fact, The Second Treatise states:

A Man...cannot, by Compact, or his own consent, enslave himself 'to any one, nor put himself under the Absolute Arbitrary Power of another, to take away his Life, when he pleases. 785

776 See, Richard Tuck, Natural rights theories, pp.164,168,171.777 See, J.G.A. Pocock, The Ancient Constitution and the Feudal Law, pp.236-237,354.778 See, Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton, Princeton University Press, 1986), pp. 181-227, especially pp.189-190,210 212,217,222779 See, James Tully, "Placing the Two Treatises", Political discourse in early modern Britain, pp.253-2, pp.256-257780 See, James Tully, "Locke", The Cambridge History of Political Thought, pp.616-652, pp.621,625,630781 See: G.A.J. Rogers, Introduction to Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes, Edited by G.A..J. Rogers (Bristol, Thoemmes Press, 1995), pp.vii-xvii, p.vii; also, Richard Tuck, Natural Rights Theories, p. 168.782 See, John Finnis, Natural Law and Natural Rights (Oxford, Oxford University Press, 1979), pp.276-277.783 See: Thomas Aquinas, Summa Theologiae I-II, qu.90, art.4, p. 17, qu.95, art.2,4, pp.58-60,70-71; also John Locke, Two Treatises of Government, Edited with an Introduction by Peter Laslett (Cambridge, Cambridge University Press, 1963), Second Treatise, par. 12.784 See, David Wootton, "Leveller democracy and the Puritan Revolution", The Cambridge History of Political Thought, pp.412-442, pp.412,433,442.785 Ibidem, par.23.

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Nevertheless, perhaps because of the objective nature of natural right both Locke and the levellers seemed to assume that valid social contracts would bind subsequent generations. 786 After all, if natural rights exist in order to ensure the realization of an objective natural law, and that law has been realised, it would be foolish, and possibly culpable, to disturb arrangements for a matter of relative moral indifference such as, for example, the long-running battle over liturgy in the Reformed Church of England. 787 Locke's stress on the necessarily consensual nature of political authority is not formulated in any institutional detail concerning participation or franchise arrangements, and despite the radicalisation of our view of Locke, which has been primarily effected by Richard Ashcraft, it may still be right to see the gist of his notion of 'consent' in the right to withdraw it in extremis rather than the requirement that it be explicitly registered in the ordinary course of affairs. 788 This may seem to make the "objectivity" of Locke's natural rights theory immune to the subjectivism and conventionalism of Hobbes' Dialogue, which had already infected Hale's critique of it. However, as I will argue next, this is not true.

The legacy of A Dialogue: the move from "objective" to "subjective reason"

In fact, Hobbesian subjectivism and conventionalism did "infect" Locke too. Indeed, the radicalisation effected by Richard Ashcraft significantly points out that while Locke's criterion of legitimacy at the start of his Second Treatise is in conformity with the law of nature, by the end of the work the justification of rebellion is the subjective disconfiture of a significant majority of the people. 789 This is to shift the emphasis in questions of legitimacy from the origins of authority to its consequences, a process begun by Hobbes and to which A Dialogue was a significant contribution, and which is indeed at work in Locke's argument, but will be taken much further by Hume and Burke and even later. The loss of the objectivity of common law and of the concern to formalize natural right, and eventually also the drift away from contract, much less a renewable contract, are logically connected. Once the theological premises of Locke's argument are taken away, i.e. if natural rights lose their close connection with a natural law which rights-holders have a responsibility to articulate and protect, and become almost indistinguishable from subjective desires, there is no longer a need for government to have a specified moral warrant from the trustees to exercise moral authority. 790 Accordingly, in the eighteenth century a conservative thinker like Josiah Tucker who was prepared to acknowledge "as one of the plainest and most obvious Truths imaginable" that what government is to do is to govern well and not to abuse its position, nevertheless thought that to dress this up in the language of a precise contract, and specific natural right, was "a very odd Way of expressing [it]". 791

786 See: John Dunn, "Trust", A Companion to contemporary political philosophy, Edited by Robert E. Goodin and Philip Pettit, (Oxford, Blackwell Publishers, 1993), pp.638-644, p.640; also Ibidem, Jean Hampton, "Contract and consent", pp.379-393, pp.380-382.787 Concerning Locke's views on religious toleration, see: James Tully, "Locke", p.652.788 Concerning Locke as advocating the right to withdraw consent only in extremis see: ibidem, p.642. The radicalisation of Locke is prominently effected by the magisterial book of Richard Ashcraft: Revolutionary Politics and Locke's Two Treatises of Government (Princeton, Princeton University Press, 1986), e.g., p.311.789 See: Richard Ashcraft, "Revolutionary Politics and Locke's Two Treatises of Government', Political Theory, 8 (1980), pp.429-486; James Tully, "Locke", pp.636-637.790 See, Ibidem, pp.617, 621-622.791 See, Josiah Tucker, Dean of Gloucester, A Treatise concerning Civil Government (London, T. Cadell, 1781) p.139.

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William Blackstone shared the same view. Hobbes sets a trend towards subjective utility in natural-law thinking which is paralleled by the language of custom and common law, and which will lead to a kind of consequentialist and informal utilitarianism according to which legitimate government is not one in accordance with natural law, but one which derives from popular will. Of course, this is a kind of informal utilitarianism because and in so far as legitimization by popular will is considered per se as a "consequence" which fullfills a criterion of (subjective) utility.What is peculiar to Locke and to common-law thinking generally, is the conception of freedom as a corporate or community freedom against the potentially arbitrary power of a chief magistrate, and for Parliament, although not for radicals disputing its authority, that freedom inhered principally in the roles of many of the officials, and assemblies such as juries and the House of Commons itself, which collectively made up the constitutional part of the common law inheritance. Any individual freedoms claimed against the state were essentially derivative from this, and consisted in the guarantee, under common law, of the individual's access to various procedures such as trial by peers, or to bodies such as parliament via petition, and in the contentious legal vulnerability of the crown to the judgement of the courts. In fact, the King himself could not be pursued through the courts for he had no peers to judge him, but his ministers, acting in his name, could be. 792

A Dialogue rejected this conception of law and of community freedom on which common law rested. 793 In fact, according to Hobbes, the essential feature of law is to be the peremptory command of the sovereign. This peremptory command is incompatible with any independent decision-making regulated by custom and made by judges or by assemblies which do not have themselves sovereign power. 794 Hobbes proposed a conception of a community of individuals bound by loyalty to clear public rules, rather than to common goals and shared traditions. 795 This conception later became one of the sources of Bentham's legal positivism, even though he criticized Hobbes' authoritarianism. 796 Indeed, according to Hobbes, laws are mutually recognized, but they may not be endogenous to the community, since there may be nothing truly common in the community from which they can arise. Rather, they are exogenous, that is to say, they are an external framework of rules fixed and public, which is established by a sovereign in order to make social life possible. 797

It is therefore in stark contrast with Hobbes' conception of law that claims made about the uncoercive nature of common law derived from its claimed basis in the customs and dispositions of the people. However, the nature and status claimed for such customs and dispositions change through time, the nature of custom from being perceived to be the embodiment of an objective past, tends to become subjective belief. In Coke we find claims about the essentially unchanged nature of common law going back to Saxon times and before. Such naive or disingenuous claims persisted to the end of the eighteenth century - we find them in Burke, and in Blackstone who states:

792 See, Jean Louis De Lolme, The Constitution of England, 6th edition (London, Baldwin, 1810), pp.92-93.793 See, Gerald Postema, Bentham and the Common Law Tradition, p.314.794 See, Ibidem, p.326.795 See, Ibidem, p.314.796 See, Ibidem, p.315.797 See, Ibidem, p.314.

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The first ground and chief cornerstone of the laws of England... is general immemorial custom, or common law, from time to time declared in the decisions of the courts of justice. 798

The claims of common law rest, unsurprisingly in a traditional community, on its supposed predating of other laws. The presumptive immemoriality of custom was a safeguard against the findings of Royalist historical scholarship. If Parliaments had been created by kings, then kings could dismiss them; but if Parliament were immemorial they could not. Such assumptions were shared by Royalist and common-law Parliamentarians alike, and set the rules for ideological conflict over the past. Interestingly, by Blackstone's time it had become possible to fudge the issue again; he cites Lord Chief Justice Wilmot who said:

the common law is nothing else but statutes worn out out by time... all our law began by consent of the legislature, and whether it is now law by usage or writing is the same thing. 799

Blackstone in what would have been a most damaging admission for a seventeenth-century Parlamentarian common lawyer to make, agrees that "this is the probable origin of the greatest part of the common law." 800 This criterion of subjective acceptability at times approaches, but never quite achieves, the Hobbesian notion of a contract. In Blackstone the two notions are asserted in the same work with little awareness of the potential for tension between them, rather their complementarity is stressed:

It is one of the characteristic marks of English liberty, that our common law depends upon custom; which carries this internal evidence of freedom with it, that it probably was introduced by the voluntary consent of the people. 801

The mere "probability" of this voluntary consent is the weak point of the argument. Blackstone rejected the idea of an explicit contract leading from a state of nature, but his ensuing discussion of government relapses into a vague assumption of it. 802 This was part of the target of Bentham's attack in his Fragment on Government. 803

Moreover, once the developmental and accommodatory implications of common law are fleshed out, the plausibility of this contractarian element is completely exploded, for - as Hume was at pains to point out - there could never have been anything so clear-cut as a contract to agree to. 804 Secondly, and relatedly, the possibility of a hypothetical or constructive contract is ruled out by the peculiar conception of reason implicit in common-law thinking. These are indeed Hume's arguments.

798 William Blackstone, Commentaries on the Laws of England, Vol. 1, p.72.799 Ibidem, p.74, note 7.800 Ibidem.801 Ibidem, p.74.802 See, Ibidem, p.47.803 See, Jeremy Bentham, A fragment on government (1776), Edited by J.H. Bums and H.L.A. Hart (Cambridge, Cambridge University Press, 1988), pp.37-38.804 See: David Hume, A Treatise of Human Nature, Edited by L.A. Selby-Bigge, 2nd edition, revised by P.H. Nidditch (Oxford, The Clarendon Press, 1978), p.490; also An Enquiry Concerning the Principles of Morals, Edited by L.A. Selby-Bigge, 3rd edition, revised by P.H. Nidditch (Oxford, The Clarendon Press, 1975), p.306.

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So, by blending elements emerging from the intellectual process begun by A Dialogue and Hale's critique of it (i.e. the loss of objectivity of common law and the criterion of subjective acceptability, with his own epistemology), Hume's theory of law and justice deepens and radically changes common-law theory.805Hume, like Locke, may or may not have blended these elements self-consciously, because, although he was much influenced by Hale's History of the Common Law and by Hobbes, there is no proof that he read or directly drew inspiration either from A Dialogue or from Hale's critique. 806 But his theory of justice, self-consciously or not, deals with the problem left unresolved by Hale's sophisticated defence of common law against Hobbes' Dialogue. Hale's position in fact was itself vulnerable to a yet more thorough-going critique. For, in an important sense, the defence of custom presumed what it purported to demonstrate, namely the coherence and utility of the arrangements arrived at through adaptive custom. 807 Since, if, ex hypothesi, individual reason was powerless to penetrate the rationality achieved by an ensemble of institutions and practices over time, the common-law thesis would be unfalsifiable, and simply an act of faith. 808 If, on the other hand, the sceptical hypothesis were dropped, and the statement that custom worked in such a way as, by a kind of Darwinian process, to select the most suitable and congruent practices and institutions were construed as one which was, in principle, a matter of empirical investigation by individual minds, then the historical process would be open to scrutiny, and other criteria of assessment would be admitted, against which the presumed rationality of the result could be assessed. 809

For someone such as Hume, arguing in the relative political calm of the mid-eighteenth century, the second hypothesis, pending deeper investigation, might be enough to start with as a presumptive proof Having filled out, through his theory of association and utility, the origins and growths of particular institutions, Hume was quite prepared to acknowledge that some among them might be purely irrational, or no longer have utility, even assuming that they ever had it. 810 The role of self-conscious reason could then be to discover that they no longer have utility and adapt or change them as needed. 811 By arguing in this way, Hume hovers uneasily between belief in a universal social rationality (which particular societies, for quite explicable, i.e. generalisable, historical reasons have departed from) and an appreciation of the deep conventionality of most human practices. 812 The "general rules" and "maxims" which densely populate Hume's epistemology are not private policies, or even universal human dispositions, or at least not just that. They are constituents of social practices, defining a common point of view on a shared world. 813

However, Hume's account of the development of institutions such as property relied on the notoriously irrational operation of the association of ideas, and was, for most thinkers, perilously relativist. 814 Even though Hume may not have drawn inspiration directly from Hobbes' Dialogue, more generally, in even analysing the process, let 805 See, Ibidem, p.81.806 See, Ibidem, pp.79-80,89.807 See, David Hume, A Treatise of Human Nature, Edited with an Introduction by Ernest C. Mossner (Harmondsworth, Penguin Classics, 1985), pp.604,607.808 See, Gerald J. Postema, Bentham and the Common Law Tradition, pp.69,133.809 See, David Hume, A Treatise of Human Nature, p.580.810 See, Ibidem, pp.534-536.811 See, for instance: Ibidem, p.544.812 See, Ibidem, p.536.813 See, Gerald J. Postema, Bentham and the Common Law Tradition, p.99.814 See, David Hume, A Treatise of Human Nature, pp.542-543,647.

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alone stressing the role of subjectivity, he seems to have detracted from the dignity and solemnity which common law thinking had successfully managed to extract from its claim to unbroken if obscure continuity from time immemorial, which is what Hobbes attempted to do with his criticism of common law. 815 So, from having an objective status as an historical product, common law has become for Hume, and later for Burke, a matter of pure subjectivity. 816 In regard to this, the lesson of Hobbes' Dialogue to the common lawyers constitutes a turning point in the history of legal and political thought. In sum, because of this, Hobbes - at least posthumously - has won his long battle against Coke: even though his political fight, i.e., the defence of absolute monarchy, was "lost" by Hume, common law is not taken as the "objective" embodiment of reason, but as a most valuable historical convention which, nevertheless, like all human practices, can be subject to critical scrutiny. 817 In my view, this is the most enduring legacy of Hobbes' Dialogue.

815 See, Ibidem, pp.547-548.

816 See, Iain William Hampsher-Monk, "Rhetoric and Opinion in the Politics of Edmund Burke", History of Political Thought, Vol.IX, Issue 3 (Winter 1988), pp.455-484, pp.457,466,469,474-475,484.817 See, David Hume, A Treatise of Human Nature, pp 614-615,617.

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CHAPTER VII

CONCLUSION

A Dialogue represents the completion of Hobbes' science of politics. In A Dialogue, Hobbes tries to apply his century's, but even more his own, rationalism to jurisprudence. But Leviathan's method and the principles of common law are at odds. The apparent purpose of Hobbes' philosophical enterprise is to build a bridge between the two. But such a purpose is only an apparent one and the success of this undertaking does not depend on whether A Dialogue fills the gap between Leviathan's legal positivism (using this expression in an Austinian sense) and common law. In fact, we must distinguish between what Hobbes needs in order to persuade common-law-minded people about, and what he wants to establish about the intrinsic properties of law. In reality, Hobbes wants to undermine the role of tradition in the English juridical system, and A Dialogue identifies common law with reason only in order to question the basis of many rules advocated by Coke in the name of custom. The Philosopher achieves this purpose in Hobbes' study of English laws without any serious challenge from his counterpart, the Lawyer. Hobbes' rational jurisprudence in A Dialogue argues in favour of the idea that law as the command of the sovereign is the juridical principle which will be able to remove any possible cause of future civil unrest. Conforming to the conventionalist epistemological premises of Leviathan, the juridical model proposed by A Dialogue has the political aim of vindicating Hobbes' ideas by applying his scientific method to the study of law. For Hobbes "science" can only be "the way to a general end", i.e., to "the Benefit of mankind": all scientific knowledge needs to answer to concrete and specific purposes. There is a link between science and jurisprudence in so far as both are technological and causative. Hobbes' rational study of law is a specification of his science of politics which is supposed to be the way to endorse obedience to the sovereign's will preventing the recurrence of the situation that had already led to civil wars in the 1640s.I disagree with Cropsey when he argues that A Dialogue embodies Hobbes' attempt – inspired by Bacon - to reconcile absolute sovereignty with the sharing of power between king and Parliament, and for this reason constitutes a moderate revision of the conclusions of Leviathan's science of politics. I disagree with this view because A Dialogue does not fundamentally differ from Leviathan. Indeed, it develops and strengthens the same ideas by justifying them historically, or rather, by claiming to do so, if we bear in mind that Hobbes' claims in A Dialogue concerning the existence of absolute (Hobbesian) sovereignty in the past rely on arguable historical evidence. But this could be the object of further research outside the scope of my present work. Hobbes needs empirical confirmation, which in this case is historical, in order to test his model of jurisprudence. Indeed, supposedly, there is no science without a practical verification of its usefulness. In this way, the role of jurisprudence is like the role of the example of man's behaviour in the state of nature given in chapter xiii of Leviathan. So jurisprudence needs a knowledge of history, plus a successful practical verification, in order to vindicate itself. But for Hobbes, as we have seen, there can be no understanding of the historical facts without politics and jurisprudence which, unlike history, are included in Leviathan's table of sciences. My point here is that this method is consistent with the fact that Hobbes in A Dialogue appeals to historical knowledge only selectively, i.e. in order to find some "critical" confirmations for the

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conclusions of his science of politics and jurisprudence which advocate absolute sovereignty. Only within this selective and critical appeal could historical knowledge ultimately disconfirm such conclusions. That is to say, in A Dialogue, the historical example of the English Civil War is invoked by the Philosopher and even by the Lawyer in order to show that the attempt to undermine the power of the king has in fact undermined the peace and security of the people in conformity with what would be expected according to Hobbes' science of politics. So, by the use of this historical example, Hobbes resolves the problem of finding a correspondence between the teachings of his jurisprudence and historical knowledge, i.e., between his theory and experience.However, some critical evaluation of Hobbes' scientific views as opposed to mere reconstruction is useful in order to highlight the problems he leaves open. Hobbes attempted to show that a science of natural bodies, a science of man, and a science of political bodies which argues in favour of absolute sovereignty in order to preserve peace and security, could all be elaborated systematically. He succeeded in doing this, and that is no small feat. Nevertheless, as Maurice Goldsmith points out, Hobbes' science exhibits an important weakness in the lack of criteria for falsifying itself by empirical tests.818 His science in general and his politics and jurisprudence in particular explains some phenomena, but Hobbes does not allow his science to be tested by such phenomena, except rhetorically. Moreover, Richard Tuck has recently pointed out that Hobbes' geometry or mechanics, besides seeming crude by our present-day standards, is a science of "an extremely exiguous kind", because it is based on:

...a bare a priori materialism, according to which the universe must consist of material objects causally interacting with one another, but the real character of these objects and their interactions is unknowable. 819

Equally "exiguous" is Hobbes' science of politics and jurisprudence which even in the final version of A Dialogue, as in Leviathan, offers us no more ground to stand on as a guide for living than the practical force of the principle of self-preservation, according to which we should unconditionally obey the laws of the sovereign. According to Tuck, it follows from this that Hobbes' science of politics is similar in its conclusions to the sceptical theories of Montaigne and his followers. 820 The issue of whether this science can in fact offer the best means for self preservation rests ultimately more on subjective judgement than on actual history. But arguably, on these "exiguous" epistemological premises, we should think twice before being convinced by deductive reasoning alone of the advantage of assigning to the state an arbitrary power over our lives. Indeed, we should bear in mind that the rigid and alienating state structures of the modern world, while perhaps destroying older intolerances, may replace them with new and worse ones. The twentieth century, for example, has given rise to extremely intolerant forms of government, as well as to state structures governed by dictatorial regimes which in the name of intolerant ideological beliefs, like Nazism or Stalinism, have caused death and destruction on a large scale. As a result, unconditional obedience to the laws of the sovereign has often not been the best means of self-preservation.

818 See, Maurice M. Goldsmith, Hobbes' Science of Politics, p.242.819 Richard Tuck, Hobbes (Oxford, Oxford University Press, 1989), p. 114.820 See, Ibidem, p. l15.

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However, Hobbes in A Dialogue does succeed in showing to the "traditionary"-minded English readers of his time who were used to hearing and reading political arguments based on the authority of the past, that the method of his science of politics can grapple with and successfully vanquish those rhetorical arguments which are based on custom that we find in Coke's celebration of the common law of England. Paradoxically, Hobbes achieves this by his own use of rhetoric, that is by enlisting the "traditionary" conception of common law in the service of his own science of politics by arguing that knowledge of the past confirms the necessity of absolute sovereignty in order to maintain peace. Hobbes succeeds in this enterprise because he was a good historian. Indeed, his use of history as rhetoric provoked a more self-conscious defence of common law from Hale which, however, inexorably left the common law mind open to critical scrutiny. In fact, as pointed out by Burke and Hegel, once it becomes necessary to convince the people that tradition must be regarded in the traditional way, it becomes clear that they no longer view tradition in that way. In regard to this, Hegel in The Phenomenology of Spirit gives an enlightening exemplification of this process by describing what happens when we start enquiring about the origin of customary laws:

[I]f I enquire after their origin and confine them to the point whence they arose, then I have transcended them; for now it is I who am the universal and they are the conditioned and limited. If they are supposed to be validated by my insight, then I have already denied their unshakeable, intrinsic being, and regard them as something which, for me, is perhaps true, but also is perhaps not true. 821

As exemplified in this passage, the "traditionary" conception of common law requires a certain naive innocence which, once lost, cannot be regained. Hale, at least to a certain extent, seems to be aware of this in his critique of A Dialogue. For this reason, he advances a pragmatic defence of common law. As Postema points out, Hale suggests that the most basic reason for compliance with the law lies simply in the fact that it works, i.e. the law does the job of public ordering that needs to be done. 822 Hale believes that it does this better than Hobbes' science of politics, because it is closer to the resources of common belief and experience in which the solutions to the problems of governing the people can be found. 823 This is an emerging theme in common-law tradition, one to which the contrast between Hobbes' Dialogue and Hale significantly contributed, and which became more important in the eighteenth century in the face of a pressing demand for a reasoned defence of authority which did not rely on appeals to transcendent reason. 824 So, paradoxically, there is a sense in which A Dialogue has contributed to the evolution, if not to the final victory against absolute monarchy, of that "common law mind" whose role Hobbes sought to undermine by his own use of history as rhetoric.

821 George Wilhelm Friedrich Hegel, The Phenomenology of Spirit, Translated by A. V. Miller (Oxford, Oxford University Press, 1977), para.437, p.261.822 See, Gerald J. Postema, Bentham and the Common Law Tradition, p.79.823 See, "Reflections by the Lrd. Cheife Justice Hale on Mr. Hobbes His Dialogue of the Lawe", pp.504-505.824 See, Gerald J. Postema, Bentham and the Common Law Tradition, p.79.

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