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3 Brit. J. Am. Legal Stud. 165 (2014)
Commanding Consistently with Sovereignty: Thomas Hobbes's Natural Law Theory of Morality and Civil Law

handle is hein.journals/bjamles3 and id is 169 raw text is: COMMANDING CONSISTENTLY WITH SOVEREIGNTY: THOMAS HOBBES'S NATURAL LAW THEORY OF MORALITY AND CIVIL LAW Kody W. Cooper' Texas State University ABSTRACT In this essay, I seek to defend a reading of Hobbes's theory of civil law as properly a natural law theory. On the natural law account, for some ordi- nance to fully bind one with the force of civil law, in the focal sense of law, it must be both systemically and morally valid.' While, strictly speaking, it is anachronistic to apply the notions of systemic and moral validity to as- sess Hobbes's theory of civil law, I suggest that the distinction is helpful in making sense of Hobbes's theory. Hobbes's account of civil law qualifies as a natural law account because for him, a datum is systemically valid if it is sourced in the sovereign's command and it is morally valid if it does not contravene natural law. To defend this interpretation I first sketch an in- terpretation of Hobbes's theory of morality as a properly natural law theo- ry. I argue that Hobbes's relation to the high water mark of the classical natural law tradition, as expressed in Thomistic thought, is different than is often supposed. I then proceed to consider his account of civil law and take up two interpretive puzzles in Hobbes that seem to obscure the dis- tinction between systemic and moral validity: Hobbes's theories of authori- zation and the mutual containment of the natural law and positive law. I offer a solution to each interpretive puzzle that would maintain the distinc- tion. On this basis, Hobbes's theory of civil law is vindicated as properly a natural law theory. I will begin by sketching Hobbes's natural law account of morality, which provides the foundation for his account of civil law. Lecturer, Department of Political Science, Texas State University. I am indebted to A.P. Martinich, J. Budziszewski, Devin Stauffer, and one anonymous reviewer at the Journal for comments on earlier drafts of this article. 1 For discussion and defense of this thesis of natural law theory, see JOHN FINNIs, NATURAL LAW AND NATURAL RIGHTS, 26, 351-66 (2d ed. 2011); John Finnis, Natural Law: The Classical Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 20-23, 33-34 (Jules L. Coleman & Scott J. Shapiro eds., 2002); For Joseph Raz's distinction between systemic and moral validity, see JOSEPH RAz, THE AUTHORITY OF LAW 146-59 (1979). 165

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