Unwritten Law in Hobbesian Political Thought
| Author | Alan Cromartie |
| DOI | 10.1111/1467-856X.00032 |
| Date | 01 June 2000 |
| Published date | 01 June 2000 |
| Subject Matter | Article |
British Journal of Politics and International Relations,
Vol. 2, No. 2, June 2000, pp. 161–178
Unwritten law in Hobbesian
political thought1
ALAN CROMARTIE
Abstract
In Hobbesian terminology, ‘unwritten laws’ are natural laws enforced within a polity, by a
non-sovereign judge, without some previous public promulgation. This article discusses the
idea in the light of successive Hobbesian accounts of ‘law’ and ‘obligation’. Between De Cive
and Leviathan, Hobbes dropped the idea that natural law is strictly speaking law, but he
continued to believe unwritten laws must form a part of any legal system. He was unable
to explain how such a law could claim a legal status. His loyalty to the notion, in spite of
all the trouble that it caused, is a sign of his belief that moral knowledge is readily
accessible to all.
No one is likely to deny that Hobbes was much preoccupied with law.1The
provision of ‘the true and perspicuous explication of the elements of laws,
natural and politic’ (Elements, I i 1) was the explicit purpose of Elements
of Law, his earliest attempt at political writing, and the concept is
pervasive in both De Cive and Leviathan.2But in spite of all the energy
devoted to clarifying Hobbes’ exposition, there is a detail of his legal
theory that certainly deserves fuller treatment. No one has given adequate
attention to his conception of ‘unwritten’ law (that is, of natural principles
applied within a polity without some previous human promulgation). As
we shall see, Hobbes thought such principles were an inevitable part of
any legal system, for he denied that it was possible to formulate a set of
determinate rules that would guide the judge in settling every conflict. In
© Political Studies Association 2000. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF and
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this he was far from unusual. Like virtually all his contemporaries, he saw
a need for equitable courts, courts charged, at least in theory, with supple-
menting legal principles for the sake of natural justice. But the idea of
equity, as normally construed, implied a body of principle outside the legal
system; the oddity of Hobbesian jurisprudence was his belief that equity is
part of civil law. This article is basically a commentary on that proposition.
The importance of the Hobbesian belief in the existence of unwritten
law lies in the difficulties that it makes for one conventional interpretation.
A helpful discussion by Postema, for instance, takes as its starting point the
view that Hobbes should be regarded as a ‘subjectivist’, somebody who
holds that ‘all standards of good, virtue, justice and right reason are con-
ventional’ (Postema 1989, 48). The ‘fundamental task’ of law is therefore
to create a moral standard and this dictates the ‘shape’ of law as a deter-
minate command that is known to be the utterance of the sovereign
(Postema 1989, 55). Hobbes is a positivist, in other words, because he is a
sceptic. A judge who applies natural law where written law is silent must
be understood as ‘mimicking’ the sovereign (Postema 1989, 59–60). This
article’s principal thesis is that Hobbes was by no means subjectivist; he
was also quite appalled by the suggestion that the decisions of a judge
could be construed as quasi-legislation. My argument will reconstruct his
successive accounts of ‘law’ and ‘obligation’, with a view to understanding
his belief that an unwritten rule could be a law. In doing so, it will confront
the celebrated problem of whether natural law depends on God.
It may be helpful to begin with a short treatment of the legal theory
against which Hobbes appears to have reacted. The understanding of the
law that Hobbes believed himself to be confronting was the one to be found
in the writings of the great Sir Edward Coke (1552–1634), an author who
achieved the unusual distinction of being mentioned (disapprovingly) on
three occasions in Leviathan (Lev., xv 4; xxvi 11, 24). Coke saw the un-
written common law, in a passage that Hobbes quoted, as ‘an artificial per-
fection of reason, gotten by long study, observation, and experience’ (Lev.,
xxvi 11). The words encapsulated attitudes that gave a privileged status to
the conclusions of the common lawyers, embodied in professional trad-
ition, about the interests of the English nation. ‘Artificial’ comes from ‘artifex’
(the specialised practitioner of a craft), while the phrase ‘the perfection of
reason’ (ratio perfecta) was drawn from Cicero’s De Legibus, where it
denotes a Stoic understanding of cosmic moral order so far as it is actual-
ised in human conceptions of law. Coke’s jurisprudence thus combined a
sense that law is rationality as realised under special circumstances with a
belief that the professional enjoys unique advantages in trying to perceive
Alan Cromartie
162 © Political Studies Association 2000.
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