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Published online by Cambridge University Press: 03 May 2013
Contrary to the way Hobbes has been interpreted for centuries, I will argue that Hobbes laid the groundwork for contemporary international law and for a distinctly moral approach to the rules of war. The paper has the following structure. First, I will explain the role that the laws of nature play in Hobbes's understanding of the state of war. Second, I will explain Hobbes's views of self-preservation and inflicting cruelty. Third, I reconstruct Hobbes's important insight that rationality governs all human affairs, even those concerning war. Fourth, I explicate the idea of cruelty moving from what Hobbes says to a plausible Hobbesian position. Fifth, I address recent philosophical writing on how best to understand the rules of war. Sixth, I then turn to legal discussions of cruelty's place in debates about the laws of war, showing how my Hobbesian approach can ground these laws.
1 Arend, A. C. and Beck, R. J., International Law and the Use of Force (1993), 16.Google Scholar
2 See Berns, W., ‘John Milton’, in Strauss, L. and Cropsey, J. (eds.), History of Political Philosophy (1963), 355.Google Scholar
3 For example, see Morgenthau, H., Politics among Nations (1965), 56.Google Scholar
4 I do not claim, though, that Hobbes provides a basis for all of the laws of war, but only some of the most important ones.
5 For the dominant view against which I argue, see Beitz, C., Political Theory and International Relations, (1979, 1999)Google Scholar, Part One.
6 T. Hobbes, Leviathan (ed. R. Tuck), (1651, 1996), 88–9.
7 Ibid., at 90.
8 Ibid., at 92.
9 See Kavka, G., Hobbesian Moral and Political Theory, (1980)Google Scholar. I here take no stand on the debate that has raged about the extent to which Hobbes was an egoist. The two most recent books on this issue are Lloyd, S. A., Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009)CrossRefGoogle Scholar; and B. Gert, Hobbes: Prince of Peace (2010).
10 Hobbes, supra note 6 at 108.
11 Ibid.
12 There is a significant group of interpreters of Hobbes who see moral obligation as only binding because of the fact that God promulgates the natural law. God is needed to aid us in knowing the laws of nature and to provide the binding effects. A. E. Taylor, H. Warrender, and F. C. Hood have each advanced the thesis that God plays a central role in Hobbes's moral philosophy. Warrender presents the strongest argument against the interpretation I urge throughout my paper. In H. Warrender, The Political Philosophy of Thomas Hobbes (1957), 100, he says:
In the present work, Hobbes's statements regarding the place of God will be taken as a necessary part of his theory, and it will be contended that this allows the most probable construction to be put upon his text. Thus it will be held that with regard to natural law, the ground of obligation is always present as this derives from the commands of God in his natural kingdom, and does not depend in any way upon the covenant and consent of the individual or upon the command of the civil sovereign.
Perhaps the most telling point in Warrender's favour is Hobbes’ own claim that the laws of nature might not be a defective form of moral obligation in the state of nature. For this to be true, there would have to be some authority in the state of nature who issues moral commands. Warrender forcefully argues that God is the only entity that could fill this function (ibid., at 98). The chief passage from Leviathan that Warrender relies on is this:
But yet if we consider the same theorems, as delivered in the word of God, that by right commandeth all things; then are [the laws of nature] properly called laws. (EW III 147, Hobbes, supra note 6, at 111)
As Warrender himself admits, this passage is conditional and is thus subject to a number of interpretations. Since Hobbes has just said that the laws of nature are not properly called laws, the consequent clause must be something which Hobbes believes to be false. And by modus tollens Hobbes commits himself to believing that the antecedent clause is false also. It is for this reason that I hold that the laws of nature for Hobbes are a defective form of moral obligation.
13 Hobbes, supra note 6, at 110.
14 Ibid., at 111.
15 Ibid., at 219.
16 There is an important debate today about the various ways in which a person can be innocent during war. See J. McMahan, Killing during War (2009). McMahan and his followers argue that those who participate in an unjust war should not be granted the same moral status as those who participate in a just war.
17 Hobbes, supra note 6.
18 Ibid., at 139–40.
19 See my paper, May, L., ‘Hobbes on the Attitudes of Pacifism’, in Bertman, M. and Malherbe, M. (eds.), Thomas Hobbes: De la métaphysique à la politique (1989), 129–40.Google Scholar
20 Hobbes, supra note 6, at 107.
21 Ibid., at 106.
22 Ibid., at 43–4.
23 R. Tuck, ‘Introduction’, in Hobbes, supra note 6, at xxix.
24 S. A. Lloyd correctly refers to ‘abstention from cruelty’ as a ‘natural duty’ for Hobbes. See her treatment of this topic in Lloyd, S. A., Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature (2009), 267.CrossRefGoogle Scholar
25 Hobbes, supra note 6, at 91.
26 Ibid.
27 Ibid., at 102.
28 Ibid., at 105
29 Ibid., at 108.
30 Hobbes, T., A Dialogue between a Philosopher and a Student of the Common Laws of England (ed. Cropsey, J.) (1681, 1971)Google Scholar, at 57.
31 Ibid.
32 Hobbes, supra note 6, at 91–2.
33 Ibid., at 92.
34 Ibid., at 484.
35 Ibid., at 32
36 Hobbes, supra note 30, at 54.
37 Ibid., at 53.
38 Ibid., at 141.
39 Ibid., at 44.
40 I thank Henry Shue for his comments on how Hobbes's notion of cruelty is closely related to necessity. Indeed, a plausible Hobbesian conception of cruelty could and should dispense with the element of contempt altogether.
41 EW III 40, Hobbes, supra note 6, at 39.
42 See Geiss, R., ‘The Principle of Proportionality: “Force Protection” as a Military Advantage’, (2012), 45 (1)Israel Law Review 78CrossRefGoogle Scholar.
43 For an excellent critique of this idea, see M. Osiel, The End of Reciprocity (2010).
44 Hobbes, supra note 6, at 96.
45 See J. McMahan, Killing in War (2009); C. A. J. Coady, Morality and Political Violence (2008); and McPherson, L., ‘Innocence and Responsibility in War’, (2004) 34 Canadian Journal of Philosophy 485CrossRefGoogle Scholar.
46 M. Walzer, Just and Unjust Wars (1977).
47 See L. May, War Crimes and Just War (2007).
48 See Fabre, C., ‘Guns, Food, and Liability to Attack in War’, (2009) 120 Ethics 36CrossRefGoogle Scholar; and H. Frowe, ‘Killing the Red Cross’, paper presented at annual meeting of the Society for Applied Philosophy, Manchester, July 2011.
49 Rodin, D., ‘The Moral Equality of Soldiers: Why In Bello Assymetry is Half Right’, in Rodin, D. and Shue, H., Just and Unjust Warriors (2007).Google Scholar
50 Quoted in Green, L. C., ‘International Regulation of Armed Conflicts’, in Bassiouni, M. C., International Criminal Law, Vol. 1 (1999)Google Scholar, at 363.
51 See my discussion of this debate in May, supra note 47, 75–9.
52 Quoted in Green, supra note 50, at 364.
53 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 226, at 257, para. 78.
54 Ibid., at para. 79.
55 I am very grateful to Simon O'Connor of the Norwegian Red Cross for his expert opinion on these matters.
56 See May, L., ‘Contingent Pacifism and the Moral Risks of Participating in War’, (2011) 25 (2)Public Affairs Quarterly 95Google Scholar. Also see May, L., ‘Contingent Pacifism and Selective Refusal’, (2012) 43 (1)Journal of Social Philosophy 1CrossRefGoogle Scholar.
57 The 1868 Declaration of St Petersburg.
58 See Osiel, supra note 43.
59 On this general topic see my book, May, L., After War Ends: A Philosophical Perspective (2012).CrossRefGoogle Scholar
60 Walzer, supra note 46, 132.
61 See ‘Instructions for Government of Armies of the U.S. in the Field’ drawn up by Francis Lieber in 1863, Art. 68.
62 See Shue, H., ‘Torture’ (1978) 7 (2)Philosophy & Public Affairs 124Google Scholar.
63 See my book, May, supra note 47.
64 For more on these topics, see L. May, Limiting Leviathan: Hobbes on Law and International Affairs (forthcoming).