Every state has some kind of code of civil laws outlining for its citizens how they must live. These laws may be written, spoken, or merely assumed, but they form the basis for justice in the state.
Civil Law is, to every subject, those rules which the commonwealth hath commanded him (by word, writing, or other sufficient sign of the will) to make use of, for the distinction of right and wrong, that is to say, of what is contrary, and what is not contrary to rule. (XXVI.3)
These laws, as we should know by now, come from the sovereign alone acting as legislator and carry the power to command rather than merely to advise. In this sense, “civil laws” may be understood in contrast to the “counselors” discussed in the previous chapters.
And yet, the sovereign himself (or “themselves,” if an assembly) is not subject to the civil laws:
For having power to make and repeal laws, he may when he pleaseth, free himself from that subjection by repealing those laws that trouble him and making of new; and consequently he was free before. (XXVI.6)
How this principle is supposed to work in a democracy, where the whole people is sovereign, Hobbes does not say. I do not, however, take him to mean that the sovereign may ignore the laws on a whim. Rather, I think the idea is that the sovereign may write into the laws an exemption for himself, or he may assume that such an exemption exists. The sovereign does not break the law so much as he exists above it.
The sovereign has several options as to where he finds inspiration for the law. That is, when a law is going through whatever legislative apparatus the sovereign has established it need not necessarily find its source with the sovereign himself. It may in fact come from tradition (XXVI.7); natural law (XXVI.8); local customs, provincial codes, or practices of conquered peoples (XXVI.9); reason (XXVI.11); or of course from the sovereign himself (XXVI.10). But whatever the source,
all laws, written and unwritten, have their authority and force from the will of the commonwealth, that is to say, from the will of the representative [sovereign]. (XVI.10)
This contrary to those who would try to divide the powers of enforcing the law from those of establishing it (in Hobbes’s day, that meant separating the powers of king and Parliament). To separate “force” from “justice” is for Hobbes to undermine the very existence of the state itself.
Aside from the law of nature—which all men know by means of our inherent reason—the civil law is to be known, proclaimed, interpreted (according to the will of the sovereign), understandable by the common people, and enforced. All of this implies that
1) we know who the legislator/sovereign is;
2) we have some form of public access to the law;
3) we have an obligation to find out what the law says if we have a question about a potential action or something that has been done to us.
I suspect that if it hasn’t been already there’s a book to be written (a dissertation, maybe?) comparing and contrasting this section of the Leviathan with Aquinas’s Summa on the law. But not by me; I struggle to read the Scholastics in the first place, let alone to do an intensive study of them. (Not that Hobbes is much better.)
As in our day, so in Hobbes’s time the law needed to be interpreted by judges. For even when the laws are published and widely known, there will still be real-world questions of application. Hobbes has already said that the intent of the legislator (the sovereign) is to be the meaning behind the law, and in the same way the sovereign (or the person designated by the sovereign as a judge) is the final authority in interpreting the law practically.
But because there is no judge, subordinate or sovereign, but may err in a judgment of equity, if afterward, in another like case, he find it more consonant to equity to give a contrary sentence, he is obliged to do it. No man’s error becomes his own law, nor obliges him to persist in it. Neither (for the same reason) becomes it a law to other judges, though sworn to follow it. (XXVI.23)
No defense of the common law here! In fact, Hobbes directly attacks Coke, one of its main proponents. If we’re familiar with the arguments for and against the common law, we’ll be able to see where Hobbes is coming from and what he’s trying to do. “Precedent” and the principle of “stare decisis,” for all their strengths, can codify mistakes, establish wicked laws, and enforce poor decisions. Of course, Hobbes’s approach has its weaknesses too—the civil law approach can lack the stability, flexibility, and protections of a common law system. If you force me to pick a side, I’d come down for the civil law system at the nation level and for the common law system at the local and state level. Hobbes’s England, of course, did not have that option.
So what makes a good judge?
The things that make a good judge (or good interpreter of the laws) are, first, a right understanding of that principle law of nature called equity, which, depending not on the reading of other men’s writings but on the goodness of a man’s own natural reason and meditation, is presumed to be in those most that have had most leisure, and had the most inclination to meditate thereon. Secondly, contempt of unnecessary riches and preferments. Thirdly, to be able in judgment to divest himself of all fear, anger, hatred, love, and compassion. Fourthly, and lastly, patience to hear; diligent attention in hearing; and memory to retain, digest and apply what he hath heard. (XXVI.28)
We might be surprised to see that Hobbes’s definition of a good judge isn’t simply “someone who knows the will and intent of the sovereign and can apply it in any given circumstance.” In fact, I think Hobbes has a pretty decent discussion of the qualities that make good judges, especially in the context of his descriptions of the different sorts of English courts (the House of Lords and common juries). Whatever we think of his description of the law, he does seem to have a solid handle on what makes a good judge.
Speaking of his description of the law, the bulk of the end of this chapter is dedicated to the classification of the different kinds of law. Drawing on his classical training, Hobbes walks through the categories outlined in the Justinian Code and then adds his own divisions of the law. As with his breakdown of the sciences, Hobbes’s survey of the law is too complex for extended discussion here. His overall concerns, however, are fairly simple and straightforward. First, as we see in his outline of divine law, he really only cares about how “law” applies to the state. Quickly dismissing the question of how we know divine law is really from God as opposed to just being made up by some charlatan (just believe it!), he notes that the source of said law is irrelevant to our obligation to obey when it is brought into the civil code:
I conclude, therefore, that in all things not contrary to the moral law (that is to say, to the law of nature) all subjects are bound to obey that for divine law which is declared to be so by the laws of the commonwealth. (XXVI.41)
Once a law has been incorporated by an action of the sovereign into the body of laws of the commonwealth, its divine source is no longer relevant and only really of interest to theologians, not political scientists.
Hobbes’s second main concern in discussing the law is that we think correctly and in the right categories rather than mixing our terms to the point where they all mean the same thing, and so are meaningless—as he thinks has happened with the terms lex and ius, or “law” and “right.” If our jurisprudence is going to be truly just, we need to be able to talk with true knowledge about “natural law” as opposed to “positive law,” or “fundamental law” as set beside “divine law.” Inability to do so undermines our conceptions of the legal system and, ultimately, undermines the foundation of the commonwealth itself.
Coyle Neal is Assistant Professor of Political Science at Southwest Baptist University in Bolivar, Missouri.