Hobbes and the Doctrine of Natural Rights: the Place of Consent in His Political Philosophy

• Author: Rex Martin
• Published date: 01 September 1980
• Date: 01 September 1980
• DOI: http://doi.org/10.1177/106591298003300310
• Subject Matter: Articles

HOBBES AND
THE
DOCTRINE OF NATURAL
RIGHTS:
THE PLACE OF CONSENT IN HIS POLITICAL
PHILOSOPHY
REX MARTIN
University of Kansas
N
THE HISTORY of political philosophy the notion of consent is iden-
~ tified prominently with the theory of Hobbes. Here it is usually said to
function in two distinct but related roles: to identify that trait which
confers legitimacy or authority on a government and to establish the princi-
pal ground of the individual citizen’s obligation to conform to law.’
Thus we find Patrick Riley saying, &dquo;That consent, promise, and agree-
ment, as the foundation of ’covenants’ (contracts depending on trust), are
fundamental in defining what Hobbes means by the political legitimacy of
sovereigns and the political obligations of subjects, is scarcely open to
doubt.&dquo;2 The crucial point, which requires emphasizing here, is that consent
so conceived is said to operate through a social contract (or covenant) or a
promise of some sort.3 It follows then that the social contract or covenant
constitutes the principal place at which consent has a role in Hobbes’ theory.
I am inclined to dispute this particular and quite conventional reading
of Hobbes. In my paper I would like to consider the various places at which
consent might be located in Hobbes’ theory and, briefly, to suggest
anomalies that would arise in each case from such a placement. My object in
all this is to show that Hobbes’ principal and essential use of consent was not
at the point of the social contract or of any putative promise of subjection
and obedience. In effect I want to deny the bearing of the standard theory
in the case of Hobbes, at least as regards the place(s) at which it has tradi-
tionally located consent.
There is, however, another role which the notion of consent has played
that has, while not going unnoticed, been considerably underplayed. I have
in mind the connection that exists, in the thought of Hobbes, between con-
sent and natural rights. The latter part of my paper, then will be concerned
with developing the importance of this particular connection.~
4
NOTE: An earlier version of this paper was presented at the VIth meeting of AMINTAPHIL
(the American Section of the International Association for Philosophy of Law and Social
Philosophy) at Amherst, MA, in March 1978; a much shorter version of the present paper
was read at a session of the Hobbes Tercentenary Congress in Boulder, CO, in August
1979. I want to thank the General Research Fund of the University of Kansas for a grant
(3120-2038) which supported the initial drafting of my paper. I am grateful to Karen
Reeder Bell for bibliographic help.
1
These are the principal functions of consent in what might be called the standard theory, as
found, for example, in the recent studies by Harry Beran, "In Defense of the Consent
Theory of Political Obligation and Authority," Ethics 87 (1977): 260-71, esp. pp. 260-61,
268, and A. John Simmons, "Tacit Consent and Political Obligation," Philosophy and Public
Affairs 5 (1976): 274-91, esp. pp. 274, 281, 284, and 290.
2 At p. 502 in Patrick Riley, "Will and Legitimacy in the Philosophy of Hobbes: Is He a Consent
Theorist?" Political Studies 21 (1973): 500-522; see also p. 500.
3
See ibid., pp. 502, 507, 515.
4
My remarks are, however, somewhat conjectural; for Hobbes really had no explicit concept of
rights. Rather, he tended to talk about a rather peculiar kind of right, called a natural
right, and to identify one or more things (be it "self-preservation" or "a liberty to do
anything") as a right of that sort. This he did without any prior analysis of just what a right
is. Surprisingly, not many of the things written about Hobbes have addressed themselves
to his theory of natural rights as their main topic. And these few have not been apt toward
making the points I want to emphasize in this paper. The following are a representative
sample: the papers by C. B. Macpherson ("Natural Rights In Hobbes and Locke," pp.

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381
We
might begin by characterizing natural rights as the rights one has, or
would have, in a state of nature. It is no accident that both Hobbes and
Locke preface their discussion of natural rights with a word picture, and a
rather striking one at that, of humankind’s original condition. Hobbes,
moreover, described this state twice over -
or, better, described it in two
different ways.
In the one, we consider men under certain psychological descriptions:
they are &dquo;diffident&dquo; (or suspicious), proud, fearful, rational (i.e., calculative),
self-preservative. In the other we consider these same persons, with these
same traits, but this time under certain legal or, rather, legal-like descrip-
tions : right, law, contract, and so on.
Here we are told that in a situation in which there were no overarching
and enforceable rules of conduct, no common master, men would each
follow a definite and singular policy. They would do anything to preserve
their life and substance: that is, anything they were physically able to do, for
there would be no &dquo;inner&dquo; constraint afforded by sentiment or by reason
which could inhibit such a policy. Indeed, reason and feeling, when con-
sulted and reflected on, would prescribe precisely such a policy. Here ra-
tionality is being used as a prescriptive notion, telling us what it is rational to
do in a situation of a certain sort. Hence, one’s natural liberty (i.e., one’s
conduct when freed from both internal and external restraint) would be
fully licensed by reflective reason to do anything. This unrestricted liberty of
each individual, in the state of nature, is his natural right.
Of course we are rationally bound not to do anything which harms our
self-preservation. This Hobbes calls the law of nature. At first it might appear
that natural right and natural law are two variant ways of saying the same
thing. The one says you can and should do anything to preserve your self
and substance (natural right or liberty); the other that you should do noth-
ing that harms them (natural law or constraint). However, when we consider
that a policy of unrestrained violence by all is itself inimical to the preserva-
tion of the life and substance of each individual, we see that natural law must
inhibit natural right. Thus the solution to the threat to life and limb posed
by a policy of violence, both preemptive and retaliatory, is to seek peace.
But how? We cannot change man’s basic psychological makeup. Nor can
men be expected to act irrationally. We must seek peace in the one way
available: by altering the very conditions of the state of nature. For what
makes the state of nature is not merely man’s psychological constitution or
his being subject to rational norms; rather, it is those things under conditions
peculiar to the state of nature -
that there are no overarching rules, no
common
master -
which give rise to the characteristic imperatives on man’s
behavior in that state in the first place. So, although it is rational to act in the
state of nature way under the conditions peculiar to that state, it is also
rational to want to emerge from that state, to seek peace. The difference
between these two rational perspectives, the first called natural right and the
second natural law, is the difference between a short-term and a long-term
rationality; it is the difference between a pattern of sensible behavior in a
situation which is itself defectively rational and the pattern in a situation
which, if achievable, would be maximally rational. So we must explore, at
1-15) and Raymond Polin ("The Rights of Man in Hobbes and Locke," pp. 16-26) in D. D.
Raphael, ed., Political Theory and the Rights of Man (Bloomington: Indiana University Press,
1967); the discussion papers on "Obligations and Rights in Hobbes" by D. D. Raphael (pp.
345-52) and Howard Warrender (pp. 352-57) in Philosophy 37 (1962); Ramon Lemos,
"Two Concepts of Natural Rights," Southern Journal of Philosophy 12 (1974): 55-64, and
Robert Paul Finch, "Defining ’Natural Rights’: A Problem and Solution Considered,"
Southern Journal of Philosophy 13 (1975): 287-95 (a reply to Lemos).

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382
least in imagination, what it would take for men to live outside, to live
beyond, the state of nature. That is, to live under the rational norms of the
law of nature without the distorting effects of the wholesale exercise of
natural rights.
For each man, the policy of violence, which is the natural right of each,
would have to be totally and permanently renounced. Hobbes calls this con-
tract. And such a contract can, he believes, make sense only where it can be
maintained and enforced. Hobbes next argues, and here I anticipate a bit,
that any such contract must be validated or made effective -
such a policy
made rational -
by a particular kind of agency, absent by definition from
the state of nature situation. Such an agency would make and enforce over-
arching rules so as to inhibit violence and allay the wary scepticism that each
man has of the others’ intentions and capacities.
In short, individual persons &dquo;make&dquo; the contract with each other. That
is, they see that these terms make sense and act as if the terms of total,
permanent, and mutual renunciation of first-strike violence were a general
policy. Government, while not a party to this contract and hence not to these
terms, exists to maintain that policy.
Individual consent, interestingly, does not enter the picture of the state
of nature. We do not in fact consent to the depredations of others, nor they
to...