Michael Green points to an apparent inconsistency in Hobbes’ Leviathan concerning justice in the state of nature:
Hobbes claims three things that are difficult to reconcile. (All references are to chapter and paragraph in Leviathan unless otherwise noted).
1. There is no such thing as justice or injustice in the state of nature.
"To this war of every man against every man, this also is consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice." (13.13; see also 15.3)
2. Injustice is, by definition, breaking a valid covenant.
"the definition of INJUSTICE, is no other than the not performance of covenant. And whatsoever is not unjust, is just." (15.1-2)
3. There are valid, obligatory covenants in the state of nature (textual evidence below). [14.27; 15.4.5]
(1) and (2) together entail that there are no valid covenants in the state of nature (Hobbes says so himself: 15.3). That contradicts (3).
But (2) and (3) together entail that there is such a thing as justice and injustice in the state of nature. That contradicts (1).
What are we to make of this apparent contradiction? Green tries to resolve it through a process of impressive and subtle interpretation. I’m inclined to agree with Philip Kain (see below) that Hobbes was caught between competing interests that do not allow an easy way out of the dilemma. Let me see if I can make this clear.
Kain [Marx and Modern Political Theory, Lanham, MD: Rowman and Littlefield, 1993] claims Hobbes’ problem is, in part, due to his project of providing a scientific deduction of the necessity of the social contract and the absolute sovereign. So, again, we need to consider what follows from the existence of justice in the SN.
A. If justice exists in the SN, there may be alternatives to an absolute sovereign and Hobbes’ argument for the necessity of the social contract fails.
If just agreements exist in the state of nature, it might be irrational for people to consent to an absolute sovereign. Why couldn’t they settle for a limited government that would act as arbitrator in disputes, or create a government that was capable of bringing about consensus among the people, a la Rousseau? This, at least, seems to be an option. And if it is, it’s possible but not necessary for them to relinquish all their rights to an absolute sovereign.
B. If justice does not exist in the SN, nothing legitimates the original covenant and Hobbes’ argument for the necessity of the social contract fails.
Without just agreements in the state of nature, nothing legitimates covenants (as stated in the Third Law of Nature) and, a fortiori, the original contract establishing the absolute sovereign. [Note, Hobbes' claims at 13.13 and 15.3 that there is no justice outside a Commonwealth.]
So, with or without justice in the state of nature, the argument for the social contract fails.
Hobbes may have had another reason for claiming that there is a basis for just covenants in the state of nature. So let’s try another tack.
If there are no just agreements in the state of nature but only in a commonwealth, then the sovereign must make right and wrong by means of arbitrary judgments. Hobbes seems committed to this when he says there is no justice outside a commonwealth. But without just agreements in the state of nature, there seems no way to argue from fact to value — from "is" to "ought". What do I mean by that?
Imagine an ideal situation in which everyone who makes a promise keeps it. It doesn’t follow from the fact that people keep their promises that they ought to keep their promises. There’s another step missing that would connect what one does with what one is obliged to do. So how does one get from the empirical fact of what people actually do to the obligation, i.e. that they are somehow obliged to keep their promises? There seems to be none in Hobbes’ state of nature. (That’s part of the reason it seems so odd to claim, as Hobbes does, that if a robber says "your money or your life" and doesn’t kill me, I’m obligated to turn over my money.) Thus, there would seem to be no basis in the state of nature for claiming that keeping covenants is just and obligatory rather than simply prudential.
But why is justice important for Hobbes? Why isn’t fear a sufficient basis for maintaining public order in the commonwealth? It may be. There is, of course, a long tradition of those who claim that might makes right. But that doesn’t make it legitimate. If you are going to argue for a political order based on a just agreement, as Hobbes attempts to do, you must have a way of accounting for justice and obligation. It has to come from somewhere. Either it’s
1. an intrinsic feature of the world,
2. given by God, or
3. established by convention.
This is where things get difficult and messy. Since Hobbes is a strict empiricist, it may be hard to see how he can claim God is responsible for the laws of nature. But he does just that. At the end of his discussion of the laws of nature, he makes the following statement:
These dictates of reason men used to call by the name of laws, but improperly: for they are but conclusions or theorems concerning what conduceth to the conservation and defence of themselves; whereas law, properly, is the word of him that by right hath command over others. But yet if we consider the same theorems as delivered in the word of God that by right commandeth all things, then are they properly called laws. (15.41)
Hobbes also claims that laws of nature are discovered by reason and are related to the fundamental law to seek peace. Justice seems, however, to be a very precise notion in Hobbes’ scheme of things. An unjust act is defined as the breaking of a covenant. If an act is not unjust, he claims it is just. (This is a strange definition, but I’ll set that aside for the purposes of this discussion.) And the command to fulfill contractual obligations is the third law of nature. So again we confront the existence of justice in the state of nature and the question, "Why is it there?"
Part of the reason, picking up the thread of Kain’s argument, must be to get from fact to value — from "is" to "ought". It’s a fact that commonwealths (or states) are most often the result of wars and hostile takeovers. What justifies the rule of the conqueror in such situations? Under what conditions would the conquered be obligated to obey the sovereign? Hobbes has a facile answer. War and the collapse of the commonwealth is a return to the state of nature. If in that state of nature the conqueror does not kill us, we are obligated to fulfill his demands. That’s the basis for the covenant which Hobbes claims is just (without argument, as far as I can see).
He also claims that sovereignty by acquisition (conquering a people; 17.13 & 18.1) is equivalent to sovereignty by institution (20.1-3; 10-11). Just agreements in the state of nature are required to justify the former (recall the claim about robbery at 14.27). As Kain observes, without that justification derived in a purely theoretical (scientific and deductive) manner, Hobbes would have no basis for linking theory ("ought") with fact ("is"), claiming that the two forms of sovereignty are equivalent, and that both are legitimate. The problem, as suggested above, is that the existence of just agreements in the state of nature undermines Hobbes’ argument for sovereignty by institution.
Thus, in his admirable attempt to move beyond the merely utopian exercise of deriving the necessity of the social contract in the state of nature and demonstrating how the abstract, scientific derivation which justifies absolute sovereignty can also legitimize historical reality — that historical fact is logically supported and justified — Hobbes is led to the contradiction discussed above.