Julie Saada attempts to circumscribe, in the political philosophy of Hobbes, a theory of the subject of law based on a norm of rationality which would limit natural law. But it is not certain, replies Michel Malherbe, that a strictly legal logic can be isolated from Hobbesian anthropology.
It is less a thesis organized as a doctrine which is put forward here than an intention, declared with force and determination, that of seeking in the philosophy of Hobbes the lineaments of a theory of the subject of law, a subject which should be placed at the foundation of legal obligation and, generally speaking, of the legal system. To do this, it is appropriate to “ detach », from the bottom of the anthropological presuppositions and the political consequences which are usually valued by the commentary, a logic which would be strictly legal. The obligation is then to think “ as a normative construction which determines the forms that the will can take to produce a moral relationship of a legal type » (p. XIV). And the author announces that she will resort to two methods: on the one hand, reading modern theories of contract historically (and more particularly that of Hobbes), showing that “ the concept of obligation has moved from private law to a foundational logic of the entire legal order » (ibid.) ; on the other hand engage in a “ analytical approach » of the concept of legal obligation, a concept already operating in the thought of Hobbes.
In accordance with this announcement, the volume consists mainly of a commentary on the chapters relating to natural law and natural law in the three reference works ; commentary which proceeds by highlighting, against the backdrop of keenly conducted historical analyzes (the moral tradition, the pre-modern conception of obligation, Machiavellianism, the influence of skepticism, etc.) the major conceptual articulations which enter into obligation legal at Hobbes. In truth, over the course of the chapters, it is less the cursive restitution of the Hobbesian argument that is proposed, than a detailed study of the relevant concepts. In this respect, the work is indeed analytical.
Logic of interest: reasoning and consent
Certainly, it is difficult to deny that Hobbes’s philosophy includes an established anthropology and political theory. This is why Julie Saada plays with the internal tension of the texts and the dynamics of the themes. The first two chapters have a sort of propaedeutic function. They strive to “ make move » the texts by summarizing the classic conflicts of interpretation which structure the commentary, in relation to natural law: Watkins versus Taylor and Warender, which allows us to bring out the antithetical positions of intellectualism and voluntarism ; Popkin, Skinner or Tuck, as to the question of the impact of skepticism on ethical theory and whether human reason can know and be regulated by norms of justice (opposition of interest and justice). We thus arrive, in the third part of the second chapter, at the criticism of consent, a criticism which would allow Hobbes to free himself from the traditional conception of obligation, and to introduce the problem of interest.
The chapter III attempts to characterize this new conception of interest by showing how Hobbes departs both from the moral conception of interest as self-love and from the opposite conception of honor as virtue, and this by placing himself in a logic of the exercise of power integrating the concept of interest “ true » (the one which proceeds from the principle of self-preservation as the object of a rational calculation).
It’s in the chapter IV that the author’s point comes together. This chapter, recalling that Hobbes refuses to consider the consent of men as allowing the recognition of pre-existing norms, takes up the challenge of relativism to which such skepticism could lead: “ The observation of the generality of the pursuit of individual interest makes it possible to establish interest as a postulate of political science “. (p. 101). Hence the necessary redefinition of natural law and right reason. Everyone sets up their particular opinion as right reason. On this “ constitutive invariant of human nature » (p. 102), the author, relying on Le Citoyen II1, thinks he can assert that Hobbes “ reveals the possibility of a formal agreement between men, of consent to a rule of reasoning capable of founding a first normative source, that of natural law » (p. 102). And the “ recta ratio » is then “ the rectitude of the act of reasoning valid as a rule, that is to say a formal rule for the production of norms. » (p. 104). “ Hobbes constitutes the subject of law by the set of rational procedures of which he is the author and by the consent he grants to the results of these reasonings » (p. 104).
It remains to develop this theme of “ recta ratio ”, who slipped “ from instrumental rationality to normative rationality », passing from natural law to natural laws, and first to the first of them: the search for peace. The author analyzes the deduction of these laws, dividing them into four groups (in our opinion breaking the linear character of the deduction whose principle is quite clear, the law which follows prescribing, each time, the means of applying the preceding law), and it gives a particular fate to the promise (with the question of the transfer of rights), a voluntary act from which the subject of law emerges. We can then recapitulate the whole point: natural laws “ do not oblige, but they show the rational necessity of obliging, falling within a maximizing conception of practical rationality. They do not in themselves limit the natural right, but they indicate to those who deduce them how to impose such a limit » (p. 157).
The dominant feature of this study, perhaps by mimicry with its subject, is vigor. This vigor translates into a robustness of the detailed analyses, the solidity of which we will appreciate, fortunately in retreat from the announcement effects of the introduction and certain formulas which are intended to be too definitive. We thus have the feeling that the “ strictly legal logic » that the author wants to bring out is for her more a means of investigation, giving depth to the commentary through the adopted means, than an acquired result, definitively recordable. In any case, we cannot dispute this or that particular analysis with supporting texts, which is the merit of any good study in the history of philosophy.
A strictly legal logic ?
The initial assertion remains: that we can identify and isolate this legal moment from the anthropological moment and the political moment (which are not really lost, since we can partly recover them within the first). There is a kind of rational impatience in Hobbes’s philosophy that results in a philosophical style that is essentially argumentative. And it’s always tricky to extract a quote or extrapolate a development. It seems to us that this spirit of novelty that Julie Saada claims to reflect is not without distorting what a more linear and continuous reading would give, “ more obvious ” somehow. Let us take as an example a crucial point for the author’s reasoning. In the chapter IVp. 105, this one cites The CitizenI, 7 which ends with the assertion that “ the first foundation of natural law is that everyone protects his life and limbs as much as he can “. The quote is paraphrased as follows: Hobbes affirms that all men agree (consent) that what is not contrary to right reason is done justly, then he identifies the right with the use that a man makes of his own power in accordance with right reason, and he finally ends with the formula cited above. The author then comments: “ There recta ratio plays the role of operator of this transformation of natural desire into law “. What we will gladly grant: reason represents in natural law the object of life (self-preservation) and the freedom to work on it to the extent of its power. A right that everyone grants to themselves, but that everyone must therefore grant to others, since this representation is rational (hence the contradiction between the form and content of the right). This invariant of human nature that the author evoked is thus stated and represented, posed in its unlimitedness. J. Saada draws an argument from consent: I agree to recognize that what is not contrary to right reason is just, as far as I am concerned but also as far as others are concerned. In a way, behaving as a rational agent is not the effect of man’s natural condition, but results from a voluntary decision. However, if we read what precedes the text of CitizenI, 7, it is quite clear that the consent referred to in the text only concerns the definition nominaland not on the real definition, of the just as being consistent with right reason. What’s more, in the following paragraph, Hobbes continues his reasoning: he who has the right to the end has the right to the means. Which is commented as follows: “ reason requires the means necessary for this end, not just any means, nor all the means “. Decisive statement, since the distinction between necessary means and any means can only be made by a norm inscribed in right reason: “ an internal self-limitation of natural law by reason » (p. 105). The limit of natural law is no longer only power, but a norm inscribed in reason itself that the voluntary agent can apply. But here again we must return to the paragraphs which precede in the text and which describe the natural condition in which men find themselves: the desire to harm, discord, generalized fear, in view of which everyone has the right to any means to preserve one’s life. Thus, the restitution of the anthropological background is enough to make the fine reading proposed by the author useless.
Let us conclude with a suggestion: if we are really looking for a legal philosophy and not a political philosophy, at this time, we would turn with advantage to the legal texts of Francis Bacon, an author whom Hobbes knew and who was a lawyer, jurist, advisor legal of James Ier and Great Chancellor of England. And regarding legal obligation, we will read with interest a text from him that Hobbes had read: the Aphorismi de jure gentium majore sive de fontibus justitiœ et juris (written around 1614 ?).