Hobbes on the Duty Not to Act on Conscience
Hobbes on the Duty Not to Act on Conscience
Abstract and Keywords
Hobbes argued that when subjects conscientiously judge that they should disobey a civil law or sovereign command, they morally ought not to act on their conscience. They should instead obey their sovereign’s command, even though they think the commanded action is wrong or sinful. This is a striking position, which seems to imply a principle repudiated at Nuremberg. This chapter discusses how Hobbes arrives at this suspect principle, and its importance to his larger political project. It offers a limited defence of Hobbes’s principle. The chapter considers whether Hobbes’s argument for the duty not to act on conscience relies on ineliminable theological premises. If so, then considering the centrality of that argument to his political theory, we would be left with the surprising result that Hobbes’s political theory will not be defensible on purely secular assumptions.
Hobbes lists among those doctrines ‘repugnant to civil society’ because they create destabilizing conflict the doctrine that whatsoever a man does against his conscience is sin. On the contrary, he argued, in some cases we have a duty not to act on our consciences. Specifically, when we conscientiously judge that we should disobey a civil law or sovereign command, we morally ought not to act on that judgement. We ought instead to obey, although we think the commanded action is wrong.1 This is a striking position. It seems to imply a principle repudiated at Nuremberg, namely, that one should follow wrongful orders.
I shall explain how Hobbes arrives at this suspect principle and what role it plays in his larger project, and offer a preliminary assessment of its defensibility. I shall offer reasons for thinking that there is something right in the reasoning that leads Hobbes to it, something that any defensible position on political obligation will have to accommodate. If that reasoning relies on ineliminable theological premises, his political theory will not be defensible on purely secular assumptions. That would be a surprising, and possibly troubling, finding, particularly to those who cling to the notion that religion is irrelevant to Hobbes’s political philosophy, but even to those who think Hobbes offers a theory intended to have universal appeal. This investigation will not settle the question of the dependence of Hobbes’s theory on religious assumptions, but will suggest a direction of research to do so.
Hobbes devoted his political works to theorizing a solution to the problem of social disorders—sedition, rebellion, and civil war. Very often these result from conflicting demands on citizens by religious authorities and secular authorities. Hobbes insisted that the English Civil War was fuelled by the claims of various religious factions that they were administering a presently existing kingdom of God and had authority to determine the profession and practice required of Christian subjects, that civil commands contrary to God’s law were not to be obeyed, and that it was a sin, punishable by damnation, to act contrary to correct religious conscience.2 These conflicting demands are destabilizing because religious believers may be moved to act on their perceived religious duty in defiance of the civil authority’s commands and irrespective of its threatened punishments. Some believers have transcendent religious interests for the sake of which they are willing to risk or even to sacrifice their lives if necessary. Hobbes warns that in a commonwealth where secular and religious authority are divided, ‘if one command somewhat to be done under penalty of natural death, another forbid it under pain of eternal death … it will follow that … the city itself is altogether dissolved. For no man can serve two masters; nor is he less, but rather more a master, whom we believe we are to obey for fear of damnation, than he whom we obey for fear of temporal death’.3 Hobbes is prepared to grant the reasonableness in principle of privileging religious duty, writing that ‘when a man receiveth two contrary Commands, and knows that one of them is Gods, he ought to obey that, and not the other, though it be the command even of his lawfull Soveraign’.4 Indeed, if civil obedience would result in the loss of eternal life, it would be ‘madnesse to obey’.5 Yet when the requirements of religious duty are determined by anyone other than the civil authority, and especially when it is up to the conscientious judgements of each individual to determine what those requirements are, disagreements about religious duty are bound to undermine social order. Because ‘Eternall life is a greater reward, than the life present; and Eternall torment a greater punishment than the death of Nature’,6 Christians will have to be assured that God will not punish them for acting contrary to their consciences. It is essential then to Hobbes’s project that he refute the contention that one sins if one obeys the civil authority’s commands contrary to one’s conscience.
Hobbes argues that the conscience is ‘nothing else but a man’s settled judgment and opinion’.7 Opinions and judgements are species of belief; and whatever we believe, we believe to be true, even when our belief does not rise to the level of knowledge. When settled, these beliefs are convictions. The convictions we term our conscience often concern matters of right and wrong. When we feel certain about the truth of our belief that some behaviour is morally or religiously required or prohibited, we defend that claim as a matter of conscience. However, notwithstanding our certainty, those beliefs may be false. As the judgement may err, so too may the conscience.8
A person’s conscience being merely the set of her own private judgements in which she has full confidence, its content is determined by the facts of her biography that produce that confidence. People’s opinions are a function of a complex interaction of their personal experiences, bodily constitution, the teachings or hearsay evidence of others they have absorbed, and (less often) their reasoning. Direct perception grounds some of our beliefs, while most of the others are taken on authority. Religious conscience is not all that different, except that for most of us our religious beliefs reflect only what we have been taught or have come to accept on the authority of others, and not any immediate religious experiences.
It is especially evident in matters of religion that what we believe is primarily a matter of whom we believe. ‘[A]ll formed Religion’, Hobbes notes, ‘is founded at first, upon the faith which a multitude hath in some one person, whom they believe … to be a holy man, to whom God himselfe vouchsafeth to declare his will supernaturally’.9 With different founders believed, we see different doctrines accepted. Most religious faith arises from the mundane process of hearing and learning, and not from either immediate supernatural experience or divine ‘infusion’ or ‘inspiration’. Most people have never experienced any direct supernatural personal revelation; they take their religious beliefs entirely on authority from parents, one or another church, their pastors or preachers, texts deemed by authorities to be sacred, or from their social group. This entails that the religious conscience of most people (their settled opinions about the truth of their religious duties) reflects contingencies of their immediate social environment rather than some direct font of cosmic truth. Christians may imagine that in holding their beliefs they are believing God, or believing Jesus, but having had no immediate contact with either, they are at most believing only what some other men have said was said by God or by Jesus, at a very far remove of stories passed down over generations.
(p.259) Some few people do form their religious opinions on the basis of direct supernatural experiences. Presumably Adam, Abraham, and Moses had religious convictions grounded on direct perceptual experiences. Hobbes concedes that the rare person who has experienced divine revelation ought to act on their resulting private conscience: ‘God is the Soveraign of all Soveraigns; and therefore, when he speaks to any Subject, he ought to be obeyed’.10 However, when God communicates in this way he does not oblige others to believe those who claim to have received his positive laws through revelation. Most dreams and visions have naturalistic causes, so that ‘though God Almighty can speak to a man, by Dreams, Visions, Voice, and Inspiration; yet he obliges no man to beleeve he hath so done to him that pretends it; who (being a man) may erre, and (which is more) may lie’.11
Another mode of direct experience that may influence the formation of religious belief is the perception of miracles. A miracle is an extraordinary event caused directly by God circumventing ordinary physical laws, and intended to procure credit to his prophet. Witnessing a miracle can cause a person to believe something with great conviction. But, Hobbes warns, we should be sceptical of alleged miracles. What we see may be the product of fraud or of entirely natural causes we simply do not understand. To perceive what one thinks to be a miracle may give rise to a conviction, without justifying that conviction. Hobbes ventures that miracles have now ceased, so this potential source of religious conscience is as practically irrelevant as direct revelation.
By Hobbes’s analysis, to have a general duty to act on conscience would be to be required to act on one’s own private judgement, or private opinion, concerning every matter. One could not have such a duty unless one also had a right to act on one’s own private judgement. This is why Hobbes ties the doctrine of duty to act on conscience to another ‘error’ disruptive to social stability, namely that every person is judge of good and evil. This is an elliptical formulation of the claim that each individual has the right to act on their personal judgements of right and wrong.12 Hobbes ventures that when his countrymen, acting on the ‘poisonous doctrine’ of Greek and Latin philosophers they learned in the universities, ‘each made up his mind about what is good, bad, just or unjust, about the laws, and about religion, as he pleased’, that is, each according to his own discretion, ‘this was the beginning of our trouble’.13 Hobbes’s state of nature (p.260) argument reveals what happens when we posit a right of each to act on his own discretion, conscience, or private judgement.
15.3 Morality Requires Forgoing the Right to Act on Private Judgement
Hobbes’s state of nature argument is meant to show that a condition in which all may permissibly act on their own private judgements so undermines our ability to achieve our ends that any rational agent must abhor and seek to avoid it. A state of nature is a situation of universal private judgement; when ‘private Appetite is the measure of Good, and Evill’ men are in the ‘condition of meer Nature’.14 When each person insists on their own private judgements of right and wrong, good and bad, just and unjust, righteous or sinful, honourable and dishonourable, and every other question, the prospects of mutual interference and insecure control of resources make it very uncertain that we will be able to make our agency effective in pursuit of any of our ends, whatever those ends may be. No rational person can willingly choose to live in the sort of agency-voiding environment created by the exercise of a universal right of private judgement. Therefore, any rational person must demand that the people whose actions can most affect himself (community members) relinquish their right to act on their own private judgements.
However, morality dictates that whatever we require of others we too must do. The core requirement of the laws of nature is reciprocity, the requirement that we hold ourselves to the same standards we impose on others.15 We are to treat them as equals, equitably. Hobbes summarizes these immutable moral laws accessible by the exercise of natural reason as demanding that ‘Whatsoever you require that others should do to you, that do ye to them.’16 Because we must insist that others lay down some portion of their right to act on their private judgement (particularly over contested questions that affect others) and agree to abide by the judgement of a public authority, reciprocity requires that we lay down the corresponding portion of our own right.17 This requirement that we subordinate our private judgement to a public judgement is tantamount to a duty not to act on conscience contrary to the public judgement.
[That] law of nature, which commands every man to allow the same rights to others they would be allowed themselves, and which contains in it all the other laws besides, is the same which Moses set down (Levit. Xix.18): Thou shalt love thy neighbor as thyself. And our Saviour calls it the sum of the moral law: Math. Xxii. 36–40.18
It follows that by the same argument, Jews and Christians have a religious duty, as well as a moral duty, not to act on their private consciences in defiance of public authority.
In addition to natural law, Scripture as properly interpreted instructs Christians to obey princes and civil magistrates generally, and to do so from duty and not just as a matter of personal prudence: ‘The Holy Scriptures teach that Christian subjects should obey their kings and sovereigns, and their ministers, even if they are heathen, not only for fear, but for conscience’s sake, as ordained by God for our benefit.’19 Citing Peter’s admonition to obey the king and his governors, ‘for so is the will of God’, and Paul’s instruction to ‘Put men in mind to be subject to Principalities, and Powers, and to obey Magistrates’ even though they were infidels, Hobbes argues that Scripture established that Christians are to recognize the judgements of their civil sovereigns in all matters, religious and civil, as authoritative, whether those judgements are ultimately correct or incorrect. Furthermore, Hobbes argues, the Christian’s prospects for salvation depend on the effort to fulfil their duty under natural law to obey the civil sovereign.20 Christians not only may permissibly, but must as a matter of duty, obey secular authorities, even in religious matters for the sake of conscience, those having been ordained by God for our good.
15.4 Christians Are Not Subject to Special Obligations to Act on Conscience
Hobbes must show that his general argument for a duty not to act on conscience is not undermined by a set of special duties imposed on Christians. Citing scriptural evidence and church history, Christians may maintain that they are under special obligations (a) to believe that Jesus is the Christ, (b) to bear witness and to refuse to deny the same, (c) not to commit idolatry or to worship improperly, and (d) to accept martyrdom if necessary for fulfilling obligations (a) through (c). Hobbes replies that none of these claims is true of Christians living in his own time. A civil command not to believe would have no effect, because belief is not subject to the will; and because we can be responsible only for what is subject to our will, we can have no duties to believe anything. Faith is a gift of God which can be neither instilled nor taken away by means of (p.262) commands. Further, no one can bear witness to events at which he was not present, including the Resurrection. And one’s killing will count as martyrdom only if one personally witnessed the Resurrection, was formally commissioned by the appropriate authority to bear witness to it, and did so to those who did not already believe.21 So Christians other than a very few persons living in Jesus’s day can have no special exemption from the duty not to act on conscience on those grounds.
The prohibition on idolatry can be observed consistent with whatever the sovereign commands, because genuine idolatry requires believing that the idol worshipped is a God, which the Christian does not. To answer the claim that Christians must conscientiously refuse commands to worship falsely, Hobbes cites Scripture in support of a permission to do so:
[A] Christian, holding firmely in his heart the Faith of Christ, hath the same liberty which the Prophet Elisha allowed to Naaman the Syrian … [W]hatsoever a subject, as Naaman was, is compelled to in obedience to his Soveraign, and doth it not in order to his own mind, but in order to the laws of his country, that action is not his, but his Soveraigns; nor is it he that in this case denyeth Christ before men, but his Governour, and the law of his countrey.22
Hobbes may sense that it would be unwise to rest his argument on his interpretation of Elisha’s words ‘Go in peace’ as a permission to worship by whatever rites one’s sovereign commands.23 What he needs is a principled argument that does not depend on a controversial interpretation of a single Scriptural verse; and he begins to develop that argument in the passage quoted.
15.5 Merely Obedient Subjects Are Not Morally Liable for What Is Done at the Sovereign’s Command
The grand philosophical argument Hobbes constructs to answer residual qualms of conscience applies across the board, to Christians and non-Christians alike. It aims to establish that when, contrary to private conscience, subjects obey commands to do wrongful actions, they bear no responsibility for the wrongs done. This is so because first, what the merely obedient subject does (the subject who does what is commanded ‘not in order to his own mind’ but only because it was lawfully commanded) is the action of the sovereign only. An action belongs to the person who commands that it be done, whereas those duty-bound to carry out the command are mere instruments. Second, moral responsibility attaches only to the natural will. The content of a sovereign command is provided by the natural will of the person or (p.263) persons who are sovereign. The natural will of the merely obedient subject acting contrary to conscience is innocent of willing wrongdoing. Hobbes insists that:
[T]he externall actions done in obedience to [laws], without the inward approbation, are the actions of the Soveraign, and not of the Subject, which is in that case but as an instrument, without any motion of his owne at all; because God hath commanded to obey them.24
An action done only in obedience to a command one is obligated to obey is the act of the authority who commanded it. So far, we might say that it is the sovereign’s will that is being acted on when obeying a law, with the obedient subject being used as the means (Hobbes says ‘instrument’) by which that will is carried out. Hobbes repeatedly likens the sovereign to the ‘soul’ of the commonwealth, giving it life and motion by providing its will and judgement, while subjects are the ‘limbs’ moved by it. Subjects are conceived as having given up their right to resist the uses the sovereign makes of their ‘strength’ (abilities) and ‘means’ (assets) ‘as he shall think expedient’.25
The quoted passage asserts that if one disapproves of the commanded action, one’s obedient performance of it is the sovereign’s action. This leaves open the possibility that if the subject approves of the commanded action, her performance of it is the joint action of herself and the sovereign, or that there are two actions in a single event here; the subject’s action on her private judgement, and the sovereign’s action by means of the subject’s instrumentality. This general analysis of the ownership of actions is instantiated in Hobbes’s explanation of why it is permissible for Christians, as it was for Naaman, to engage in heathen practices should their sovereign so command. The idolatrous action performed in such a case is the sovereign’s, and not the merely obedient subject’s.
What about immoral or sinful actions? Sin is the violation of God’s laws, including the laws of nature. Based on his position that the commanded action done through the instrumentality of the merely obedient subject is the action of the sovereign only, we would expect Hobbes to conclude that if that action is sinful, the sin belongs to the sovereign alone. That is in fact what we find:
Commands may be sometimes contrary to right reason, and therefore sins in them who command them; yet are they not against right reason, nor sins in subjects; whose right reason, in points of controversy, is that which submits itself to the reason of the city.26
If someone sins at another’s command, both sin, since neither did right; unless, by chance, the state commanded it to be done, so that the actor ought not to refuse.27
When the [subject] doth any thing against the Law of Nature by command of the [sovereign], if he be obliged by former Covenant to obey him, not he, but the [sovereign] breaketh the Law (p.264) of Nature: for though the Action be against the Law of Nature; yet it is not his: but contrarily, to refuse to do it, is against the Law of Nature, that forbiddeth breach of Covenant.28
The sin belongs to the person who commands the sinful action, because the content of the command is supplied by the natural will of the person commanding, and responsibility attaches only to a natural will. Hobbes specifies that ‘in a monarchy, if the monarch make any decree against the laws of nature, he sins himself; because in him the civil will and the natural are all one’.29 In the case of a sovereign assembly, only the members who voted on their natural wills in favour of a sinful measure are guilty, for ‘an offense issues from an expression of natural will not from a political will, which is artificial’.30 In the case of a civil command to do something contrary to natural law, ‘yet is not the injustice of the decree the injustice of every particular man, but only of those men by whose express suffrages, the decree or command was passed … [T]o make a particular man unjust, which consisteth of a body and soul natural, there is required a natural and very will.’31 What is true for minority members of an assembly that votes to command an iniquitous action, is also true for the merely obedient subjects carrying out that command. Because the command does not express their natural wills, but rather opposes them, they are not responsible.32
Hobbes’s distinction between a natural will and an artificial will parallels his distinction between private and public conscience. The will is the last appetite in deliberation, and the judgement, or conscience, is the last opinion in the search for truth.33 Just as the commonwealth’s laws serve as the artificial will of the subject, so does the judgement that they are to be obeyed serve as the artificial judgement of the subject. Hobbes writes that in obeying his sovereign, a man does act ‘according to his conscience and judgment, as having deposited his judgment in all controversies in the hands of the sovereign power’.34 But we must distinguish:
For the conscience being nothing else but a man’s settled judgment and opinion, when he hath once transferred his right of judging to another, that which shall be commanded, is no less his judgment, than [it is] the judgment of that other. So that in obedience to laws, a man doth still according to his own conscience, but not his private conscience.35
(p.265) He acts according to his own public conscience. The issue then is not whether we should obey the law in violation of conscience; the law accords with our conscience, that is, with our public conscience, the judgement of the public person (the commonwealth) whose actions we implement. The issue is whether, when our private conscience diverges from our public, we sin in following the dictates of our public conscience. To this Hobbes answers categorically: ‘whatsoever is done contrary to private conscience, is then a sin, when the laws have left him to his own liberty, and never else’.36
This is a subtle position. It is no sin to violate your private conscience by obeying a legitimate law you believe to command something wrongful. This is because you have a controlling duty to subordinate your private judgement to the public judgement, as expressed in the law. In a case like this, you have a duty not to act on private conscience. But, to do the thing you believe to be wrong absent the law commanding it would be a sin. This will be true whether or not the action is actually, objectively wrong, because to willingly do what one believes is contrary to God’s law is to show contempt for the law and a willingness to break the law, thwarted only by one’s ignorance of what the law is. God, who reads hearts, takes the will for the deed. To choose, not in response to an obligation of obedience, to do what one believes to be wrong is to act ‘with a seared conscience’, which is a sin. So to do what one believes to be wrong is as blameworthy as to do what is actually wrong, when, but only when, the judgement of right and wrong is up to oneself.37
It is important to appreciate that Hobbes is arguing, not that we sometimes have a duty to act against conscience, but rather that acting in obedience to law in fact accords with our conscience. It is not just that we substitute the sovereign’s conscience in place of our own. We ourselves judge it to be our duty under natural law to prioritize the public judgement over our private judgements, and this judgement makes the public conscience our own.38 We acknowledge something similar when we take the will of the majority to be our practical will even though we voted the minority position; or when we willingly defer to the decision of the Supreme Court even in cases that it has decided wrongly in our private judgement. We distinguish between our substantive private will, and our procedurally ascertained public will.39 Rousseau’s familiar view that the general (p.266) will is our authentic will, and to be acted on in preference to our competing corporate or private wills, articulates an idea in some respects similar to Hobbes’s.40
At this point, a question naturally arises. That actions done merely obediently at the command of the sovereign and in violation of natural law are the sovereign’s actions, and the sovereign’s sin, rather than the subjects’, is clearly Hobbes’s position. But we might wonder how this can be consistent with his view in chapters 17 and 18 of Leviathan that subjects ‘own and authorize’ the actions of their sovereigns. The idiosyncratic conception of authorization Hobbes uses confers immunity on sovereigns without ascribing moral liability to subjects.41 By ‘seating the legislative power’ or ‘ratifying the people’s [commonwealth’s] acts in general’, subjects commit to treating all the sovereign’s judgements as controlling, and would do wrong, Hobbes insists, to then refuse to treat some of them (those of which they disapprove) as controlling. But subjects do not command or commission the sovereign to do any specified or particular actions. To say that an action is done by authority is to say that it is ‘done by Commission, or Licence from him whose right it is’,42 and ‘unless he that is the author hath the right of acting himself, the actor hath no authority to act’.43 No one, neither sovereign nor subject, has any right to sin. So subjects cannot transfer to their sovereign any right to sin, nor are they authors of sinful actions commanded by the sovereign. Hobbesian authorization involves undertaking to privilege the sovereign’s public judgement over the subject’s private judgement, and immunizing the sovereign from complaints by the subject, but Hobbesian authorization does not make subjects morally responsible for the sovereign’s commands or actions done only in obedience to those commands.44 Hobbes insists in the passages we earlier surveyed that moral responsibility attaches to the person or persons whose natural will provided the content of the command, and not to the unwilling but obedient subject used as an instrument to carry out that command.
15.6 Hobbes’s Hierarchy of Responsibility
The moral responsibilities of sovereigns and subjects differ, and may be organized into what I have termed a hierarchy of responsibility. Sovereigns are required under the law of nature to do all they can to secure the common good, and are accountable to God (p.267) for any failure to do so.45 The eternal and immutable laws of nature bind sovereigns just as stringently as they do everyone else, and so the required acts of good governance ‘are the duties of sovereigns, and required at their hands to the utmost of their endeavour, by God Almighty, under pain of eternal death’.46 Sovereigns’ duties of good governance are owed directly to God, and not to subjects. Subjects are duty-bound to obey their sovereign’s commands. This is primarily a duty of equity or fairness owed to their fellow subjects whose like obedience to the sovereign they demand for the sake of their own safety.47 Subjects are accountable to God for the performance of their duty of obedience to their sovereign, also on pain of eternal death, for as we saw earlier, the effort to fulfil one’s duties under the law of nature is one of the two necessary conditions for salvation. Thus subjects are responsible to God for their obedience to the sovereign’s commands, whereas sovereigns are responsible to God for the content of their commands.
We may also picture these responsibilities hierarchically: ‘Subjects owe to sovereigns simple obedience’,48 and sovereigns owe to God simple obedience. Subjects are to obey their sovereign’s laws, and their sovereigns are to obey God’s laws. This allocation of accountability entails a corresponding allocation of immunity. Sovereigns are immune from censure by their subjects no matter the content of their commands, because ‘God has commanded [subjects] to obey them’. And subjects are immune from censure by God for obeying the sovereign’s commands no matter their content for the same reason, because ‘God has commanded to obey [sovereigns]’. Thus a subject who acts conscientiously in obedience to her sovereign’s commands, even against her private judgements of right and wrong, has done nothing wrong. Indeed, she has fulfilled her duty not to act on conscience.
15.7 In Favour of Hobbes’s Position, It Avoids Tragic Dilemmas
I said at the beginning that there might be a Nuremberg sort of worry about this position, that it too easily excuses wrongdoing on the ground that one was just following orders. We do not want to excuse those who obey the law when it commands them to do something clearly iniquitous, say to kill all the babies or firstborns in the land. Suppose then, that things were otherwise than Hobbes says. Suppose we have a moral duty to act on private conscience, so that we would be appropriately liable to moral censure, ostracism, shaming, and feelings of guilt and remorse if we obeyed a law we thought wrong. That means that we must choose between being punished by the state (p.268) for disobeying the law, or suffering those consequences of moral condemnation for obeying the law. Suppose further that we are religiously required to act according to our private conscience, even in violation of civil law, and that we would then be liable to divine punishment, including eternal damnation, if we obeyed any law against our conscience. That means we must choose between being punished by the state for disobeying, or punished by God for obeying. Suppose finally that state punishment for disobeying the law is serious—death, say;49 and that the state is effective and so can reliably carry out its threatened punishments.
On these suppositions, we face a tragic dilemma. When we have the bad fortune to think that a law is wrong (whether or not it really is wrong) we have no choice but to obey it anyway and be punished by moral censure and damned by God for acting with a seared conscience, or to disobey it, and be killed by the state. Moral pariah, damned sinner, or executed criminal: these are our choices. There is no choice we can make that will let us just get on with the lives we value and were trying to live. Hobbes was sensitive to this prospect of a dilemma. He writes ‘All men therefore that would avoid, both the punishments that are to be in this world inflicted, for disobedience to their earthly Soveraign, and those that shall be inflicted in the world to come for disobedience to God, have need be taught to distinguish well between what is, and what is not Necessary to Eternall Salvation.’50 What is necessary is a good faith effort to honour our natural law duty to obey the sovereign; what is not necessary is indulging the promptings of our private conscience.
Imposing on people a stringent duty to act on conscience makes them inordinately vulnerable to the vicissitudes of fortune. If they are unlucky enough to live under a political regime that makes bad laws enforced by draconian punishments, they cannot escape life ruination. Another unwelcome consequence of this strong position is that because the dilemma emerges only when the citizen’s private judgements diverge from the law’s requirements, the more effectively the state propagandizes its citizens into internalizing its requirements as a matter of conscience, the more rarely will they face a dilemma, and so the safer they will be from untimely death, or dishonour, or damnation. This would count in favour of invasive state formation of citizen’s moral views, but we may rightly object to that.
The position that one is required always to act on conscience no matter what the consequences is overly demanding. So if this is what is meant by the claim that a man sins in acting contrary to his conscience, the standard for avoiding sin looks unreasonably high. Would a loving, merciful God impose such a standard? The worry that God imposes tyrannical demands becomes exponentially more acute when we combine the duty to act on private conscience with our duty under the law of nature to defer to public judgement. Hobbes has offered a demonstration that the reciprocity requirement of the (p.269) law of nature demands that we submit disputes among our private judgements to the judgement of a public authoritative arbitrator and defer to its decisions. Further, Hobbes has offered evidence to show that Scripture confirms this natural law requirement to obey the civil authority. Sin being a violation of God’s law, it is a sin to act on private judgement in defiance of public law. So if it were also a sin to act against private conscience, we would sin no matter which we did, whether we obeyed the law or defied the law. God would have imposed on us a set of commandments that cannot be jointly obeyed in circumstances of conflict; and whether those circumstances obtain is not within our control. We are trapped like rats in the maze of the evil scientist who mines every path with an electric shock. Except that God is made to be the evil scientist.
We arrived at this repugnant conclusion by denying Hobbes’s assertion that subjects are not required to act on their private consciences. The hierarchy of responsibility Hobbes defends on both philosophical and scriptural grounds dissolves the dilemma and absolves God of the charge of tyranny. That should count in favour of Hobbes’s understanding. We cannot, consistently with our intention to honour God,51 think of God as systematically forcing us to face tragic choices, especially if damnation looms for whichever choice we make. Hobbes removes one horn of the dilemma by showing that the duty to act on private conscience is limited to cases in which it does not conflict with civil obedience. God does not require us to act on our private conscience in defiance of civil law, so we commit no sin in obeying.
An alternative way to resolve the dilemma would be simply to deny that God’s natural or positive laws require us to obey kings and magistrates and to submit to public authority. Maybe there is no call on us to submit to government in the first place. If God does not require the subordination of private judgement to public, we never sin in following our private conscience. Against this suggestion, Hobbes’s state of nature argument shows that individual self-rule by private judgement undermines our ability to achieve our human ends. Unlike the communities of bees and ants and other naturally sociable creatures whose hardwired consensus in private judgements enables them to cooperate without government,52 large-scale anarchic human communities are unsustainable and incompatible with our good. This being so, all except principled anarchists are likely to grant Hobbes’s conclusion that we are morally required to join with others in submitting to some sort of government. Further, our human need for government will suggest to the believer that in designing us with the nature we have, God must have willed that we submit to government.53 So this alternative path for avoiding the dilemma meets with an insurmountable roadblock. Short of radically altering human (p.270) nature so as to homogenize our private judgements, we must posit a duty to submit to some government.
Another hope for avoiding the dilemma would be to weaken each prong: we have a duty to obey the laws only when we do not think them egregiously immoral, and we have a duty to act on our private conscience only when egregious immorality is at stake (and otherwise may not act on private conscience). One difficulty with taking this alternative is that private conscience will sometimes demand not just personal disobedience to some laws but active resistance to eliminate those laws, or even revolution against the entire government. (It may require, for instance, violation of secrecy laws, aid to the enemy in unjust wars, bombing abortion clinics or killing abortionists, imposition of religious intolerance, of rigid gender roles, economic redistribution or collectivization, or dismantling the system altogether.) The political system is not insulated from possible destruction by the conscientious private judgements admitted by this alternative. So whatever argument there is in favour of having functional government speaks against permitting conscientious action on any strongly held private conviction regardless of its content.
As the examples suggest, individuals disagree radically in their judgements of which laws are egregiously immoral. Such disagreements are seemingly unbounded.54 Equity demands that if we afford anyone the right to act on their judgements regarding egregious immorality, we must afford everyone that right (otherwise we are guilty of what John Stuart Mill termed the logic of persecutors, that we may persecute others because we are right, while they may not persecute us because they are wrong). Allowing a right to disobey means granting immunity from prosecution, that is, exempting from punishment those people whose disobedience is conscientious. If we allow the right to everyone, how much instability will be introduced? If tremendous instability would result, we have to weigh our desire to maintain our peaceful society in the face of what we regard as the incorrect moral or religious zealotry of others, against our willingness to risk civil collapse so that we can follow our own conscientious convictions.
So Hobbes has given formidable reasons for declining to take either of those alternative routes to resolving the dilemma. Anyone who wishes to do so bears the burden of explaining how decent human lives could be lived in the absence of effective government, or of fashioning some system of effective government in which everyone reserves the right still to act on their private judgement at their discretion while enjoying the benefits of government. As a last resort, one might argue that morality does not in fact require reciprocity, and that stability could be maintained were we to permit conscientious exemptions only for ourselves and those who share our opinions. We could try to defend the logic of persecutors.
It is worth noting that Hobbes’s system is not necessarily incompatible with a complex system of government that contains checks and balances, so long as the system as a (p.271) whole exercises all the rights of sovereignty and is internally ordered so as to produce a fully determinate resolution to every dispute.55 We can even permit to everyone a right of conscientious objection on some grounds in some matters. For instance, exemptions from combat service, and from being called to testify against family members are explicitly approved by Hobbes. He argues that under the law of nature sovereigns are required to preserve all harmless liberties for their subjects; it would follow that the sovereign has moral reason to allow conscientious exemptions whenever they do not much affect stability. Indeed doing so would positively contribute to stability by reducing two of the three necessary conditions for rebellion: citizen discontent, and also pretence of right, or justification, for rebelling.56 This consideration provides the sovereign with a prudential reason to accommodate harmless conscientious objection, to supplement the moral reason provided by the law of nature. But this more palatable political regime still resolves the dilemma in favour of public judgement, as Hobbes insists it should.
15.8 A Question Concerning the Dispensability of Religious Argument to Hobbes’s Political Theory
Does Hobbes’s argument that we do no wrong in obeying commands that conflict with our private conscience depend essentially on religious premises? This argument is crucial to the justification of his political theory. Without it he cannot demonstrate that subjects have a general, indefeasible, and overriding duty to obey political authority. Nor can he expect to motivate religious readers to comply with his theory’s prescriptions. From the twentieth century onwards much Hobbes interpretation by philosophers has insisted that his political theory could be understood as entirely secular, with the religious parts of his works treated as optional addenda. It would be ironic if it turned out that the theory in fact depends essentially on religious premises. The arguments we have seen for his assertion that Christians are to obey civil authorities ‘for conscience sake, as ordained by God for their good’ do depend on both scriptural support and on thinking of the laws of nature as divine laws enforced by divine sanctions. So it is worth considering whether his position can be adequately supported without these religious assumptions.
If we remove from Hobbes’s theory the claims that God exists and that Scripture contains God’s word, he loses the divine backing of the laws of nature, and scriptural supports for his argument like the divine permission allowed to Naaman. He also loses a potentially tremendous source of motivation to defer to the sovereign’s commands, namely, the desire to avoid eternal death. On the flip side of the coin, gone along with religion would be a huge potential source of motivation to defect from civil obedience. Without religion as an independent font of normative claims on subjects, they would (p.272) have fewer competing demands on themselves, and no fear of damnation if they complied with sovereign commands. What would remain from this excision of religion is a secular moral argument that treating other people fairly and as our equals requires us to submit our disputes with them to the judgement of some authoritative arbitrator and then to stand to its decision, even if that decision goes against us. The only fair alternative to this would be to let everyone act on their own private judgement, and we are not willing to allow that. But if we are thus morally required to defer to the public judge, it is unreasonable to morally fault us for doing so. To fault us for failing to insist on our private conscience in defiance of the public judgement is to fault us for doing what it would be immoral of us to refuse to do. We would be guilty of immorality whichever way we act. (This is the secular version of the dilemma that Hobbes’s conception allows us to avoid.) In addition to this argument from fairness, Hobbes would still have his conceptual distinctions assigning responsibility for actions done by the merely obedient subject to the sovereign alone.
Is this secular argument supported by Hobbes’s distinctions good enough to answer the Nuremberg objection? There remains a psychological gap between prioritizing our duty to act on the procedural requirement that we submit to public authority, and our fervent desire to act on whatever substantive moral requirement we think directs us not to submit to the public authority in the case at hand. This is the very problem that confronts liberal theories of justice, including Rawls’s, that demand that citizens prioritize public principles of procedural fairness over substantive moral requirements given them by their comprehensive doctrines. Perhaps, if the argument is good enough, we should try to adjust our psychology. If the secular argument is not good enough, it may possibly be reinforced using a religious argument of the sort Hobbes advanced. If it turns out that the plausibility of the central Hobbesian argument for submitting private conscience to public authority depends on religious assumptions, Hobbes will be a political theorist who should be of interest only to religious believers. Wouldn’t that be ironic?
(1) The ‘true liberties of subjects’ discussed in chapter 21 of Leviathan do not represent exceptions to this rule. Those liberties merely immunize us from moral blame for failing to obey commands that we nevertheless may be legitimately punished for failing to obey. This class is picked out by our survival needs rather than by any judgement that the commanded actions are morally wrong.
(2) Roberto Farneti discusses the role of the desire to achieve salvation in the English Civil Wars in ‘Hobbes on Salvation’, in The Cambridge Companion to Hobbes’s Leviathan, ed. Patricia Springborg (Cambridge: Cambridge University Press, 2007), 291–308. Gerald Gaus points out that Hobbes faulted the religious interpretations of Puritans and Fifth Monarchy Men (who denied the legitimacy of all states between the Roman Empire and the Reign of Christ) as leading to the war. See his ‘Hobbes’s Challenge to Public Reason Liberalism: Public Reason and Religious Convictions in Leviathan’, in Hobbes Today: Insights for the 21st Century, ed. S. A. Lloyd (Cambridge: Cambridge University Press, 2007), 155–77. Behemoth presents a long list of guilty factions.
(3) Philosophical Rudiments Concerning Government and Society, 6.11, in EW 2.
(4) L, 43, p. 928.
(5) L, 43, p. 930; cf. DCv, 17.25, 18.14.
(6) L, 38, p. 698.
(7) EL, 25.12.
(8) Hobbes writes ‘Another doctrine repugnant to Civill Society, is, that whatsoever a man does against his Conscience, is Sinne; and it dependeth on the presumption of making himself judge of Good and Evill. For a mans Conscience, and his Judgement is the same thing; and as the Judgement, so also the Conscience may be erroneous.’ L, 29, p. 502.
(9) L, 12, p. 180.
(10) L, 33, p. 586.
(11) L, 32, p. 580.
(12) That Hobbes does not mean to claim that sovereigns define ‘good’ and ‘evil’ is shown by his insistence that sovereigns may err in their moral judgements of equity—‘there is no Judge Subordinate, nor Soveraign, but may erre in a Judgement of Equity’ (L, 36, p. 432)—and of good legislation, making laws ‘which he ought not to’ (L, 42, p. 894). Moral error would be impossible if sovereign judgement defined good and evil. And because sovereigns are normatively fallible, the distinction between private conscience and the public conscience expressed in the sovereign’s laws cannot be a distinction between fallible opinion and infallible knowledge, as Mark Hanin appears to suppose. See his ‘Thomas Hobbes’s Theory of Conscience’, History of Political Thought 33.1 (2012), 78. The error involved in the claim that every person is judge of good and evil is to think that subjects are entitled to act on their own judgements of good and evil contrary to those of their sovereign.
(13) LL, 46, p. 1097.
(14) L, 15, p. 242.
(15) For the derivation of this reciprocity requirement as a theorem of reason, see S. A. Lloyd, Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (Cambridge: Cambridge University Press, 2009), 219–20.
(16) L, 14, p. 200. As formulated in the tenth law of nature, reciprocity requires that ‘at the entrance into conditions of Peace, no man require to reserve to himselfe any Right, which he is not content should be reserved to every one of the rest’. L, 15, p. 234.
(17) How much private judgement we jointly undertake to subordinate, and over which matters, is worked out through applications of the reciprocity requirement to our judgements of what it is reasonable to require of ourselves, resulting in the limited set of retained rights to act on private judgement covered by what Hobbes terms ‘the true liberties of subjects’. See Lloyd, Morality, 28–30.
(18) Philosophical Rudiments, 4.12. Cf. L, 42, p. 786.
(19) LL, 46, p. 1095.
(20) L, 43, pp. 930, 932.
(21) L, 42, pp. 786, 788.
(22) L, 42, p. 784.
(23) Prior to Leviathan Hobbes had argued that if one occupied a leadership position such that one’s wrongful public worship would scandalize believers or shake their faith, one ought to refuse to obey commands so to worship.
(24) Hobbes introduces this claim in explaining why Christians should obey their sovereign’s erroneous religious commands. He prefaces the quoted remark: ‘[A Christian king] cannot oblige men to beleeve; though as a Civill Soveraign he may make Laws suitable to his Doctrine, which may oblige men to certain actions, and sometimes to such as they would not otherwise do, and which he ought not to command; and yet when they are commanded, they are Laws’. L, 42, p. 894.
(25) L, 17, p. 262.
(26) Philosophical Rudiments, 15.18.
(27) DH, 15.2 (emphasis added).
(28) L, 16, p. 246. The substitution of ‘subject’ for ‘Actor’ and ‘sovereign’ for ‘Author’ is licensed not only by Hobbes’s text, but by the logic of this passage: because sovereigns have made no covenant to obey anyone, the referent of ‘he’ (which stands in for ‘Actor’) in ‘if he be obliged by former Covenant to obey him’ can only be the subject. And because only sovereigns command, ‘by the command of the Author’ cannot mean by command of the subject. Ministers exercising sovereign power by appointment, when carrying out commands, are also actors, and themselves subjects. For confirmation that Hobbes’s conception of authorization, introduced in Leviathan, does not alter his argument insulating subjects from moral responsibility for merely obedient responses to their sovereign’s commands, see S. A. Lloyd, ‘Authorization and Moral Responsibility in the Philosophy of Hobbes’, Hobbes Studies 29.2 (2016), 169–88.
(29) Philosophical Rudiments, 7.14.
(30) DCv, 7.14.
(31) EL, 21.4.
(32) The individuals who are subjects of a commonwealth are both natural persons and artificial persons. For a fuller discussion of what this fact entails for their moral responsibilities, see Lloyd, ‘Authorization’.
(33) L, 7, p. 98.
(34) EL, 27.5.
(35) EL, 25.12 (emphasis added).
(37) Hobbes explains in DCv 12.2, ‘a distinction must be made: my sin is what I as agent regard as a sin on my part; but what I regard as a sin in someone else, I may sometimes do without committing sin myself. For if I am told to do something which it is a sin for the person to tell me to do, I commit no sin in doing it, provided that the person who tells me to do it is my Lord by right … Those who do not observe this distinction will find themselves committed to sin whenever they are ordered to do anything illicit—or which seems so to them.’ I discuss in section 15.7 the dilemma (Hobbes here alludes to) that would arise were we to have a duty always to act on private conscience.
(38) For this reason, it is misleading to speak, as Hanin does, of a ‘taxing and unstable … combination of external submission and internal dissent’ in Hobbes’s political system, as if the judgement that she ought to submit were not the subject’s own conscientious judgement. See Hanin, ‘Hobbes’s Theory of Conscience’, 81.
(39) Why we might do that is the issue Hobbes is engaging. If we give priority to our public will—to procedure over substance—for principled moral or religious reasons, our commitment to doing so will be much more stable than if it is based on calculations of relative power to impose our substantive preferences. Hobbes is arguing that we do in fact have such reasons.
(40) Clearly not in all. Rousseau’s general will requires that all participate in determining the law, that the law apply to all, and that the law be decided on the basis of whether it advances the goods citizens hold in common. These conditions restrict the kind of procedure that can reveal the general will. But the general will is ascertained through a public decision procedure, as is the public judgement by a Hobbesian sovereign; and that procedure takes precedence over the private conscience (for Rousseau the equivalent would be the corporate or personal will) of the individual as a matter of right.
(41) This technical understanding of authorization is documented and discussed in Lloyd, ‘Authorization’.
(42) L, 16, p. 244.
(43) DH, 15.2.
(44) It is a common mistake among commentators to suppose that because our own notion of authorization allows for the commissioning of actions one has no right to perform and assigns responsibility for those actions to the authorizer, that Hobbes’s notion of authorization does the same. It does not. For the full argument, with textual support, see Lloyd, ‘Authorization’.
(45) L, 30, p. 520.
(46) EL, 28.1.
(47) It may also be a duty of gratitude owed to the sovereign who maintains the orderly environment they enjoy; and if they have made a promise to their fellow subjects or to the sovereign to obey, obedience will be owed as a matter of justice as well as equity.
(48) L, 31, p. 554. Hobbes continues, ‘in all things, wherein their obedience is not repugnant to the Lawes of God’.
(49) That supposition is not far-fetched, because the laws that are most likely to engage conscientious objection are often the laws the state feels the need most rigorously to enforce.
(50) L, 43, p. 930.
(51) This entails thinking as highly as possible of his goodness, and his care for us. L, 31, p. 560.
(52) L, 17, p. 258.
(53) Aquinas had offered an argument similar in outline, that human nature requires government to realize our good. True, he thought subjects should obey only civil commands consistent with religious duty, as determined by the church, the proper public judgement in religious matters. But he argued against self-rule by individual private judgement on much the same ground that Hobbes did.
(54) Gerald Gaus explains the ideas of insulation and unbounded disagreement in ‘Hobbes’s Challenge to Public Reason Liberalism’.
(55) See S. A. Lloyd, ‘Locating Sovereignty in Complex Systems’, in Sovereignty and the New Executive Order, ed. Claire Finkelstein (Oxford: Oxford University Press, forthcoming).
(56) EL, 27.1.