The philosopher John Locke was accused of offering, in his teaching, a sanitized version of the political philosophy set forth by that remarkable writer of the 17th century, Thomas Hobbes. In the case of Hobbes it must be said that the teaching was set forth with literary craft-and with an unashamed detachment from any moral grounds for law and the political order. To ward off the charges, Locke started referring to that "justly decried Hobbes."
And yet, curiously enough, the key premises of Hobbes have seeped into the understanding of many public figures in America, past and present. Even more alarming, they have been seeping into the premises of those high officers, and high public teachers, who sit on the Supreme Court of the United States. This past March, in a case called Lafler v. Cooper, Justice Anthony Kennedy took the most decisive step yet in founding a branch of the American law on Hobbesian premises. A deep, vigorous resistance, challenging Kennedy's move at the root, came from Justice Scalia. Once again, the Justice who has been most outspokenly dubious about natural law found his way to the firmest moral axioms of the law in staging his resistance. Once more he has done, handsomely, the work of the natural law, without laying claim to that office or that mission. To get the sense of how deeply those Hobbesian premises cut, it is worth recalling even briefly just what that teaching was, and to remind ourselves as well what those teachings sound like as people in public life come to absorb them.
In one of the most notable pamphlets of the Revolution, the 19-year old Alexander Hamilton recognized that the teaching of Hobbes was incompatible at the root with the very premises of the American Revolution and the regime of natural rights that the Revolution sought to put in place.
In that highly quoted passage in the Leviathan, Hobbes described that state of nature in which men may find themselves when governments break down and people are no longer restrained-and protected-by the laws:
In such condition, there is no place for industry; because the fruit thereof is uncertain; ... no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short.
In Hobbes's political science, the one law of human things that was constant, the one "law" that would never be suspended, was that passion to preserve one's own life and avert a "violent death." With that interest unceasing, and under all conditions paramount, life became all the more hazardous. For one could not reasonably expect to be surrounded in the world by people seriously restrained by "moral inhibitions." As Hobbes put it, "the desires, and other passions of man are in themselves no sin. No more are the actions, that proceed from those passions, till they know a law that forbids them: which till laws be made they cannot know." In other words, without the presence of law and its restraints, people simply cannot afford to indulge the fancy that there are moral truths out there that people are taking seriously if they get in the way of what they need to protect themselves.
In his notable pamphlet, The Farmer Refuted (1775), the young Alexander Hamilton, still a student at King's College (later Columbia), caught the moral defect in Hobbes's teaching as well any writer, before or since. "[Hobbes, he wrote,] held ...that [man in the state of nature] was ... perfectly free from all restraints of law and government.... and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the maintenance of social intercourse":
[T]he reason [Hobbes] run into this absurd and impious doctrine, was, that he disbelieved the existence of an intelligent superintending principle, who is the governor, and will be the final judge of the universe. ... Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relation we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever.
All of that was bracingly clear enough to the young Alexander Hamilton. But it is worth noting how public figures and writers in our own time, less noticing perhaps of the principles that seem to be summoning them, have managed to back themselves into Hobbes's doctrines, without much awareness of what they are doing. With that in mind, a flashback: Lunch with a British diplomat, a seasoned veteran of the service, in Washington in the mid-1970's, only about a year after the authoritarian regime of Salazar in Portugal had fallen. Portugal had been enmeshed in NATO, and when Salazar had fallen, all of the pressures from the alliance worked to insure that the successor regime would be a parliamentary democracy. The Brit had been long seasoned in the Foreign Service, and so I thought it telling when he remarked that we in the West should be grateful to the Russians for the outcome in Portugal. The Russians, he noted, could easily have shipped in arms, stirred the local Communists, and made immense trouble for us. Instead, they showed restraint, and in showing that restraint, they had earned our gratitude. Let's see if we have this straight: They earned our gratitude for refraining from starting an insurrection and making the kind of trouble they had no justification for making in the first place.
Several weeks later a band of Hanafi Muslims took hostages at a bank in Washington, D.C. A round of negotiations ended the affair, with the captors leaving the building-to the applause of their former hostages. The hostages had come under the power of their captors, and now they were grateful to the captors for not using that power to take their lives. Once again, grateful that men had not used their power to do something they had utterly no justification for doing. There was an echo here also of Jefferson's famous line about slavery in America, in a letter in 1820, that "we have the wolf by the ear, and we can neither hold him, nor safely let him go. Justice is in one scale, and self-preservation in the other." Slavery was so evidently wrong by nature that the people held in slavery could not help but bear a keen sense of its wrongness. They were bound then to seek vengeance if the power that kept them in bondage were loosed in any critical degree. In other words, the interest of the slaveholders in preserving their lives could be taken to justify a state of affairs that that was patently unjust, wrong, and immoral.
That was perfect Hobbes: the interest in preserving our lives-and even more graphically averting the suffering of violent death-was the paramount interest in our lives. That interest took precedence over any other interest, including an interest in the terms of principle on which we live. The teaching here offered the inversion of Aristotle's understanding of the polis and the ground of political life: The polity was meant to protect us from an unjustified assault on our lives, but as Aristotle insisted, the polity "grows for the sake of mere life, but it exists for the sake of a good life." In the order of things for those beings who also happen to be constituted by nature with a moral sense, the terms on which we live may be even more decisive than the preservation of our lives.
What other account could finally explain or justify the willingness of young men to risk their lives on the beaches of Normandy in order to preserve the lives of others back home, or preserve a certain "way of life" even for generations they could never know? Those blond people with blue eyes in Minnesota would not have been threatened in their biological existence by the imposition of a Nazi regime, for people of that racial type would have a special, protected place in an Aryan order. A Nazi invading army would have posed no threat to the biological existence of Scandinavians in the Midwest. And so in Hobbesian reckoning, those blond Aryans would have had no moral warrant for persisting in an armed resistance to a Nazi army because the new government brought forth by that army would fully satisfy the only legitimate test that people could ask of any government: that it use its power to protect their lives. To raise the moral question now, to argue about the moral terms on which our lives would be governed, was to get things decidedly out of order.
To quibble about the moral terms was to quibble about the nature of the regime, and on the premises of Hobbes the questions of the regime had to be placed in a radically subordinated position. That sense of things was expressed clearly in the slogan often heard in academic settings during the Cold War: "better Red than dead." Better to be living under a Soviet-style regime rather than risk the extinction of our lives in a nuclear war because we take overly seriously the moral differences that separate the American and the Soviet regimes. That slogan was offset as clearly by another, as instantly grasped, and familiar enough to make it to license plates in New Hampshire: "Live free or die."
The Hobbesian moral system was crystallized in this example often given: An assailant threatens a putative victim with a knife, but the victim manages to get the drop on the assailant and wrestle him to the ground. If the former assailant get holds of his knife and kills his targeted victim, he would be judged in the light of Hobbes to have killed in self-defense. For at that moment, the former victim was as much of a threat to the life of his assailant as his assailant had been to his. That sense of things would strike most of us as bizarre or inverted. Unless we have truly absorbed Hobbes's moral premises we could not help but see the unfolding events in a morally layered way: Our common sense view would be that the assailant had no moral justification for launching that assault in the first place, and therefore, his own lethal response to the innocent man turning the tables could not itself be a "justifiable" act of self-defense. To absorb the premises of Hobbes is to absorb a state of mind that filters from any act the most decisive points of moral significance. An ordinary person who displayed that mind to us would strike us as... well, different or strange, to put it gently. But for a jurist, and even more, a justice on the Supreme Court of the United States, to have absorbed that state of mind should set off the alarms.
And so it was curious, to say the least, that the Hobbesian state of mind came into dramatic display with the late Justice Thurgood Marshall in 1980 in the memorable case of Rhode Island v. Innis . Innis was arrested for committing armed robbery with a sawed-off shotgun, and he was advised of his "Miranda rights." On the way to the police station the officers in the car fall into a conversation about the missing shotgun. One officer noted that there was a school for handicapped children in the area and "God forbid one of them might find a weapon with shells and they might hurt themselves." The conversation was of course staged to be overheard by the suspect. And it worked: Innis broke into the conversation and told the police that he would lead them back to find the weapon. Innis was informed again that he had a right to remain silent. But he responded that he "wanted to get the gun out of the way because of the kids in the area in the school." With the gun as evidence, Innis was eventually convicted for kidnaping, robbery, and murder.
The verdict was later appealed on the claim that the police had manipulated Innis with tactics that induced him to reveal his own guilt. The Supreme Court upheld the conviction, finding no coercion that would discredit the testimony or the evidence. But the judgment brought a ringing dissent from Justice Marshall, joined by Justice Brennan. Marshall complained that "one can scarcely imagine a stronger appeal to the conscience of a suspect-any suspect-than the assertion that if the weapon is not found an innocent person will be hurt or killed. And not just any innocent person, but an innocent child-a little girl-a helpless, handicapped little girl on her way to school."
If we were to take Justice Marshall at his word, it was apparently deeply manipulative, deeply wrong, to appeal to a suspect as though he might actually be governed by a moral "conscience," so that his sympathy could be stirred by the prospect of injury to an innocent child. In the jural world of Thurgood Marshall, it was not legitimate to assume that any rational man would give in to these impulses at the cost of putting himself in danger of punishment. In Marshall's understanding those moral parts of our human nature would be regarded as radically subordinate to that one fixed and preeminent interest: the interest in avoiding pain and punishment. Any appeals that would distract a rational man from that hard, necessary interest-any appeals, overt or covert, to a "moral sense"-would subvert the truly rational interest of the suspect and therefore they would be unconstitutional. What Marshall would have given us, as the "human person" who forms the subject and object of the laws is, nothing less than Hobbesian man: a creature utterly detached from that moral nature most distinct to human beings.
Marshall's hoisting of the Hobbesian banner came in a dissenting opinion; his view of the law did not command at the time a majority on the Court. But just this past March, in Lafler, Justice Kennedy could write on behalf of the majority of the Court as he made the Hobbesian doctrine an operational part of the American criminal law. And to that case, with its new moment in our law, we turn later this week.