hobbes on justice, property rights, and self-ownership
TRANSCRIPT
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This is the draft of an article forthcoming in History of Political Thought (2015)
PLEASE DO NOT CITE THIS DRAFT
HOBBES ON JUSTICE, PROPERTY RIGHTS, AND SELF-OWNERSHIP1
This paper explores the conceptual relations Hobbes perceived between justice, law, and property
rights. I argue that Hobbes developed three distinct arguments for the State-dependency of
property over time: the Security, Precision, and Creation Argument. On the last and most radical
argument, the sovereign creates all property rights ex nihilo through distributive civil laws. Hobbes
did not achieve this radically conventionalist position easily: it was not defended consistently until
the redefinition of distributive justice as a virtue of arbitrators in Leviathan. The argument is partly
advanced as a critique of C.B. Macpherson’s possessive individualist reading of Hobbes.
KEYWORDS: Thomas Hobbes; property; justice; self-ownership; C.B. Macpherson
INTRODUCTION
Hobbes’s views on property are rarely discussed in great detail.2 Stephen Buckle omits him from
his study of natural law theories of property on the grounds that Hobbes has ‘no place for a 1 For valuable comments on earlier drafts, thanks is due to Adrian Blau, Al Martinich, David Runciman and
especially Quentin Skinner, as well as to audiences at a Graduate Conference in the History of Political Thought,
Queen Mary, Univ. of London, and the Second Meeting of the European Hobbes Society, King’s College London (both
in May 2012). 2 Abbreviations and editions used: BH: Behemoth, or The Long Parliament, ed. Paul Seaward (Oxford, 2009). DCv: On the
Citizen, ed. Richard Tuck and Michael Silverthorne (Cambridge, 1998). DIB: Grotius, De Iure Belli ac Pacis, ed. Richard
Tuck (Indianapolis, 2005). DH: ‘De Homine’, in Man and Citizen, ed. Bernard Gert (Indianapolis, 1991). DPS: ‘A
Dialogue Between a Philosopher and a Student, of the Common Laws of England’, in Thomas Hobbes. Writings on
Common Law and Hereditary Right, ed. Alan Cromartie and Quentin Skinner (Oxford, 2005). EL: The Elements of Law,
Natural and Politic, ed. J.C.A. Gaskin (Oxford, 1994). EW: The English Works of Thomas Hobbes of Malmesbury, ed.
William Molesworth (London, 1839-45). L: Leviathan, ed. Noel Malcolm (Oxford, 2012). LL: ‘Latin Leviathan’, in
Leviathan, ed. Noel Malcolm (Oxford, 2012). OL: Opera Philosophica quae Latine Scripsit, ed. William Molesworth
(London, 1839-45). Where applicable, references are to chapter and paragraph, otherwise to page number.
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theory of property’.3 James Tully and Jeremy Waldron mention Hobbes only in passing, while
Peter Garnsey summarizes his position on property in a single footnote.4 Even Hobbes-scholars
have by and large ignored his views on property. The only article in English devoted to it dates
from the 1970s.5 Bracketing a noteworthy essay by Y.C. Zarka,6 research on the subject is limited
to a few scattered remarks.7 One explanation for this general neglect is that Hobbes’s position on
property is difficult to miss: time and time again he insists that private property rights are
introduced by the civil laws and remain dependent on the will of the sovereign.8 As we know
what Hobbes’s ideas on property are (whatever they amount to: he hasn’t got a theory), why study
them further?
This paper aspires to show that Hobbes does have a theory of property. It deserves that
title because his views on property are systematically linked with such prima facie disparate notions
as justice, distributive laws and the right to all things. Due to these theoretical interconnections,
the mentioned scholarly neglect has repercussions for our understanding of Hobbes’s political
theory as a whole. His views on distributive justice, in particular, suffer from scholarly
misunderstanding as a result. The topic is studied, if at all, from the perspective of equity or
natural law, the central question being whether equity sets substantive limits to the sovereign’s
conduct.9 Yet distributive justice plays a much larger role in his political theory. This role cannot
3 Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford, 1991), p. 3. 4 James Tully, A Discourse on Property: John Locke and his Adversaries (Cambridge, 1980); Jeremy Waldron, The Right to
Private Property (Oxford, 1988); Peter Garnsey, Thinking about Property: From Antiquity to the Age of Revolution (Cambridge,
2007), 136n. Hobbes’s views on property are discussed neither in Richard Tuck, Natural Right Theories: Their Origin and
Development (Cambridge, 1979), nor in Alan Ryan, Property and Political Theory (Oxford, 1984). 5 B.B. Lopata, ‘Property Theory in Hobbes’, Political Theory, I (2) (1973), pp. 203-18. 6 Y.C. Zarka, ‘La Propriété chez Hobbes’, Archives de Philosophie, LV (4) (1992), pp. 587-605. 7 The most extensive of these are Richard Schlatter, Private Property: The History of an Idea (Woking and London, 1951),
pp. 138-43; M.M. Goldsmith, Hobbes’s Science of Politics (New York, 1966), pp. 193-4, 197-200, 207-12; T.A. Horne,
Property Rights and Poverty: Political Argument in Britain, 1605-1834 (Chapel Hill, NC, 1990), pp. 24-32; J.P. Sommerville,
Thomas Hobbes: Political Ideas in Historical Context (London, 1992), pp. 49-51, 54-6, 87-95, 163-5; Christopher Pierson,
Just Property: A History in the Latin West, Vol. I: Wealth, Virtue, and the Law (Oxford, 2013), pp. 172-8, 186-8, 252. 8 E.g. EL: 24.2; EL: 27.8; DCv: ED: 9; DCv: 6.15; DCv: 12.7; DCv: 14.9; DCv: 17.10; L: 15.3; L: 18.10; L: 24.5; DPS:
9-10; DPS: 36-7. 9 E.g. Larry May, ‘Hobbes on Equity and Justice’, in Hobbes’s Science of Natural Justice, ed. Craig Walton and Paul
Johnston (Dordrecht, 1987), pp. 241-52; William Mathie, ‘Justice and Equity: And Inquiry into the Meaning and Role
of Equity in the Hobbesian Account of Justice and Politics’, published in the same volume, pp. 257-76; D.D.
Raphael, Concepts of Justice (Oxford, 2001), pp. 65-79; Dieter Hüning, ‘From The Virtue of Justice to the Concept of
Legal Order: The Significance of the suum cuique tribuere in Hobbes’s Political Philosophy’, in Natural Law and Civil
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be understood, I submit, as long as distributive justice is examined in isolation from his theory of
property. The converse also holds: I argue that Hobbes’s developing insights concerning
distributive justice drastically altered the nature and status of property rights.
This paper explores the conceptual connections Hobbes perceived between justice, law,
and property by critically assessing one of the few sustained analyses of the topic: the one offered
by C.B. Macpherson. In The Political Theory of Possessive Individualism (1962) and various smaller
writings, Macpherson argued that Hobbes’s political theory presupposes an essentially capitalist
conception of man and society: man as natural proprietor over his own person and capacities,
society as a set of market relations, and the state as a human contrivance instituted for the
protection of the individual’s property in his person and goods.10 These capitalist assumptions
partly manifested themselves, Macpherson claimed, in Hobbes’s reduction of justice ‘to a market
concept’.11 Hobbes rejected non-market standards for assessing the justness of contracts and
allocations, insisting instead that the value of all things (including human beings) is determined
wholly by demand. While Macpherson’s possessive individualist reading of Hobbes is not widely
acclaimed nowadays,12 his claims about justice appear relatively uncontroversial – that is to say,
critics have by and large refrained from challenging them.13 In fact, a prominent recent article on
Sovereignty, ed. Ian Hunter and David Saunders (New York, 2002), pp. 139-52; Perez Zagorin, Hobbes and the Law of
Nature (Princeton, 2010), pp. 92-5; Dennis Klimchuk, ‘Hobbes on Equity’, in Hobbes and the Law, ed. David
Dyzenhaus and Thomas Poole (Cambridge, 2012), pp. 165-85. 10 Macpherson discusses Hobbes in the following publications: ‘Hobbes Today’, Canadian Journal of Economic and
Political Science, XI (4) (1945), pp. 524-34; The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford, 1962);
‘Natural Rights in Hobbes and Locke’, in Political Theory and The Rights of Man, ed. D.D. Raphael (London, 1967), pp.
1-15; ‘Introduction’, in Hobbes: Leviathan, ed. C.B. Macpherson (Baltimore, 1968) pp. 9-63; ‘Leviathan Restored: A
Reply to Carmichael’, Canadian Journal for Political Science, XVI (4) (1983), pp. 795-805; ‘Rise and Fall of Economic
Justice’, in C.B. Macpherson, Rise and Fall of Economic Justice and Other Papers (Oxford, 1985), pp. 1-20; and ‘Hobbes’s
Political Economy’, published in the same work, pp. 133-46. 11 Macpherson, Possessive Individualism, pp. 64, 86. 12 On the reception of Macpherson, see James Tully, ‘The Possessive Individualism Thesis: A Reconsideration in the
Light of Recent Scholarship’, in Democracy and Possessive Individualism: The Intellectual Legacy of C.B. Macpherson, ed. J.H.
Carens (New York, 1993), pp. 19-44; Jules Townshend, ‘Hobbes as Possessive Individualist: Interrogating the C.B.
Macpherson Thesis’, Hobbes Studies, XII (1999), pp. 52-75; Michael Bray, ‘Macpherson Restored? Hobbes and the
Question of Social Origins’, History of Political Thought, XXXVIII (1) (2007), pp. 56-90. 13 As claimed by Townshend, ‘Interrogating’, p. 69. An exception is William Letwin, ‘The Economic Foundations of
Hobbes’ Politics,’ in Hobbes and Rousseau: A Collection of Critical Essays, ed. Maurice Cranston and R.S. Peters (Garden
City, 1972), pp. 155-7.
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Hobbes on justice plainly endorses Macpherson’s interpretation (albeit largely implicitly).14 Even
without this recent endorsement, Macpherson’s analysis of Hobbesian justice is, in my view,
interesting enough to deserve careful rebuttal. For he duly observed that Hobbes redefined
commutative and distributive justice in such a way that they lose much of their critical potential.
His analysis suffers, however, from a profound misunderstanding of Hobbes’s account of
distributive justice. Or so I will argue.15
My contention is that Hobbes’s account of distributive justice, properly understood,
chimes badly with the distinctively bourgeois theory of property and self-ownership that
Macpherson attributes to Hobbes. The reason is as follows. Hobbes’s two concepts of justice –
commutative and distributive justice – generate two distinct accounts of property. Each account
ascribes a different status to property rights, and assigns a different role to the State.
Macpherson’s interpretation receives some support from Hobbes’s remarks about commutative
justice. However, the account of property developed in his writings on distributive justice is
much less sympathetic to a possessive individualist reading. And it is this account, I argue, that
Hobbes decisively favours from Leviathan onwards.
The paper is structured as follows. Section one discusses Hobbes’s developing insights
concerning commutative and distributive justice. This serves a dual purpose: it allows me to
evaluate Macpherson’s analysis of Hobbes on justice, and it introduces the conceptual
background against which I will examine Hobbes’s theory of property. Section twee and three
differentiate three distinct Hobbesian explanations for the State-dependency of property. The
Security and the Precision Argument, both premised on commutative justice, presuppose provisional
pre-political claims to property. The Creation Argument, premised on distributive justice,
emphatically does not – it states that the sovereign creates property rights at will. Leviathan, I
contend, eventually discards the Security and the Precision Argument in favour of the Creation
Argument. My analysis thus corroborates M.M. Goldsmith’s suggestion that Hobbes did not attain 14 Luc Foisneau, ‘Leviathan’s Theory of Justice’, in Leviathan After 350 Years, ed. Tom Sorell and Luc Foisneau
(Oxford, 2004), pp. 105-22, esp. p. 113. 15 This paper does not engage Macpherson’s main argument for his possessive individualist interpretation of Hobbes.
That argument combines an appeal to Hobbes’s remarks about power and natural right to demonstrate the
competitive and invasive character of Hobbesian agents, with the claim that Hobbes must have assumed a possessive
market society as only that model permits and requires continual non-violent invasion of each man’s powers by those
of others. This argument has been challenged by D.J.C. Carmichael, ‘C.B. Macpherson’s Hobbes: A Critique’,
Canadian Journal for Political Science, XVI (1) (1983), pp. 61-80; Isaiah Berlin, ‘Hobbes, Locke and Professor
Macpherson’, Political Quarterly, XXXV (1964), pp. 444-68; Letwin, ‘Economic Foundations’, pp. 144-52; Peter
Hayes, ‘Hobbes’s Bourgeois Moderation’, Polity, XXXI (1) (1998), pp. 53-74.
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his radically conventionalist position on property easily. Section four, finally, argues against
Macpherson that natural self-ownership has no place in Hobbes’s theory of property. For
Hobbes, all propriety, including the right to one’s own body, is conventional and presupposes the
State.
1. THE DEATH OF ECONOMIC JUSTICE
In The Rise and Fall of Economic Justice (1985) Macpherson writes: ‘The death of the concept of
economic justice may be said to have been proclaimed by Thomas Hobbes in 1651’.16 Economic
justice is defined trivially as a norm purporting to ‘regulate economic relations in light of some
ethical principle’.17 ‘The received concepts of commutative and distributive justice’, first
explicated by Aristotle, were such norms. Commutative justice calls for fairness in exchange
(both in voluntary exchanges, such as barter and trade, and in involuntary ones, such as murder
and theft). Distributive justice regulates the allocation of common goods (according to merit).
Both norms ‘suppose the validity and the enforcement of standards of reward other than those
determined by the market’.18 According to Macpherson, Hobbes strips the two kinds of justice of
their capacity to assess the moral quality of transactions and allocations by making demand the
standard of both value and merit. Justice is thus ‘reduced to a market concept’.19
It is true that Hobbes effectively dismisses commutative justice as a norm of economic
justice by making demand the measure of value. On the Aristotelian/Thomist theory,
commutative and distributive justice express relations of equality: the equal value of goods
exchanged and the proportionality to merit of goods distributed.20 Hobbes ridicules this view: ‘As
if it were Injustice to sell dearer than we buy; or to give more to a man than he merits’ (L: 15.15).
The fair value, he claims, is merely the price buyers are willing to pay: ‘The value of all things
contracted for, is measured by the Appetite of the Contractors; and therefore the just value, is
16 Macpherson, ‘Rise and Fall’, p. 9. 17 Ibid., p. 2. 18 Macpherson, Possessive Individualism, p. 63. 19 Ibid., p. 64, also p. 86. 20 To be precise, Aristotelian commutative justice calls for rectification of unjust transactions (‘corrective justice’). A
third type of particular justice, reciprocal justice, demands the equal value of things exchanged. Aquinas applied the
term ‘commutative justice’ to both corrective and reciprocal justice. Aristotle, Nicomachean Ethics, V 2-5; Aquinas,
Summa Theologiae, II-II, q.61.1-3. On the history of particular justice, see Izhak Englard, Corrective and Distributive Justice:
From Aristotle to Modern Times (Oxford, 2009).
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that which they be contended to give’ (L: 15.14).21 This is true also of humans: ‘as in other things,
so in men, not the seller, but the buyer determines the Price’ (L: 10.16). Macpherson understood
what this means: ‘Since there is no measure of value except market price, every exchange of
values between freely contracting persons is by definition an exchange of equal values’.22 Any
contract entered is just, by virtue of having been entered. Having no use for a measure of fair
exchange, Hobbes turns commutative justice into the virtue to keep agreements made. ‘To speak
properly, Commutative Justice, is the Justice of a Contractor; that is, a Performance of Covenant,
in Buying, and Selling; Hiring and Letting to Hire; Lending, and Borrowing; Exchanging,
Bartering, and other acts of Contract’ (L: 15.14).23
With regard to distributive justice, Macpherson’s analysis is less compelling. Distributive
justice traditionally calls for the allocation of common goods according to merit. As Aristotle put
it: ‘all men agree that what is just in distribution must be according to merit’.24 Macpherson claims
that ‘there is in Hobbes’s model no measure of merit other than the actual market assessment of
a man’s merit’ .25 Merit is determined by brute market forces (‘what the market will award him’).
It follows that ‘any actual distribution is by definition a distribution in proportion to men’s
merits, and hence just; it cannot be judged by any non-market standard’.26 In support,
Macpherson quotes Leviathan 10.16: ‘the Value, or WORTH of a man, is as of all other things, his
Price; that is to say, so much as would be given for the use of his Power’.27 While prima facie
indicative of the influence of market logic, the quote does not in fact support him. Macpherson
conflates value with merit.28 Hobbes’s attack on distributive justice as traditionally conceived does 21 Also EL: 16.5; DCv: 3.6, DCv: 3.32. 22 Macpherson, Possessive Individualism, p. 63. 23 Also EL: 16.5; DCv: 3.6. Samuel Pufendorf later objected: ‘It is so far from being true that justice can be entirely
reduced to keeping one’s pact that, on the contrary, before one can know whether some pact ought to be fulfilled,
one must be certain that it was entered into at the command or at least by the permission of natural laws.’ Pufendorf,
On the Law of Nature and Nations, 1.7.13. Brian Barry voices essentially the same critique in A Treatise on Social Justice
(Berkeley, 1989), pp. 52-4. 24 Aristotle, Nicomachean Ethics, V 3. 25 Macpherson, Possessive Individualism, p. 64. 26 Macpherson, ‘Rise and Fall’, p. 9; also Macpherson, ‘Introduction’, pp. 51, 58. 27 Macpherson, ‘Rise and Fall’, p. 9; Macpherson, ‘Hobbes Today’, p. 527; Macpherson, Possessive Individualism, pp. 37-
38; Macpherson, ‘Introduction’, p. 35. Also Foisneau, ‘Leviathan’s Theory’, p. 112. 28 An example of this conflation is: ‘values, entitlements, and hence actual rights, are in fact determined by [market
forces]’. Macpherson, Possessive Individualism, 80. Also Macpherson, ‘Introduction’, 50-1. Keith Thomas mentions this
conflation in ‘The Social Origins of Hobbes’s Political Thought’, in Hobbes Studies, ed. K.C. Brown (Oxford, 1965),
pp. 230-1.
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not appeal to his ‘demand theory of value’.29 On the contrary, his critique assumes that merit is
analytically distinct from value. A person’s value or price depends on the use she has for others;
what she deserves on the actual conferment of rights through a contract or gift. ‘Merit,
praesupposeth a right, and that the thing deserved is due by promise’ (L: 10.54; also LL: 10.53).
Hobbes’s critique of distributive justice is twofold. First, he argues that it is no ‘injustice if I
give someone more of my own than is due’ – where what is due depends on what was previously
promised (DCv: 3.32).30 ‘Christ himself, witnesses to this in the Gospel’ (DCv: 3.6). Second, in
Leviathan he differentiates between merit in commutative and merit in distributive justice: ‘In
Contract, I Merit by vertue of my own power, and the Contractors need; but in this case of Free
gift, I am enabled to Merit onely by the benignity of the Giver’ (L: 14.17).31 Hobbes denies that
distributive justice is responsive to a previously existing notion of merit (e.g. άξία or dignity,
need). Merit in distributive justice depends on grace alone. Unlike commutative justice,
distributive justice does not track merit, rather it creates it. It does so by apportioning rights to
persons: ‘if [the sovereign] performe his Trust, he is said to distribute to every man his own: and
this is indeed Just Distribution, and may be called (though improperly) Distributive Justice’ (L:
15.15). In short: you deserve what you get, not the other way around.32 Hobbes never says that,
as a matter of distributive justice, rights and goods must be (or are) conferred according to a
person’s market value. Gifts are free: we may give a person as much as we like (EL: 16.5). This
may seem a minor quibble – after all, I agree with Macpherson that merit is no intrinsic property
of a person, but dependent on gifts or promises from others. Yet at bottom is a larger
disagreement: I deny that for Hobbes merit in distributive justice is determined by market forces.
Indeed, it has nothing to do with contracting at all.
To elucidate this claim, more needs to be said about Hobbes’s conception of distributive justice.
Hobbes’s ideas about distributive justice were slow to develop, and were revised quite
dramatically over time. Elements (1640) and De Cive (1642, 2nd edition 1647) talk of distributive
justice or equity as regulating disposal of ‘our own benefits’.33 Not until 1651 did Hobbes identify
distributive justice with the virtue (or natural law duty) of sovereigns: ‘Distributive Justice, the
29 For Hobbes’s ‘demand theory of value’, see L: 10.16; L: 38.25; L: 42.2. 30 Also EL: 16.5; DCv: 3.6; L: 15.15. 31 Also L: 15.14; L: 28.24. Cf. EW: 4, 380-1. 32 The politically convenient implication is that citizens cannot claim a share of the distributed goods. Nor can they
complain that they have received less than they deserve. Johan Olsthoorn, ‘Hobbes’s Account of Distributive Justice
as Equity’, British Journal for the History of Philosophy, XXI (1) (2013), pp. 13-33. 33 EL: 16.5; DCv: 3.6; DCv: 3.15; DCv: 3.32.
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Justice of an Arbitrator; that is to say, the act of defining what is Just’ (L: 15.15). Not incidentally,
the same text first calls commutative justice ‘the Justice of a Contractor’ (L: 15.14).34 ‘The Justice
of a Contractor’ is, in practice, a virtue of citizens – the virtue of keeping one’s promise to simply
obey the sovereign.35 For the sovereign does not promise or covenant anything to anyone – his
role in the original covenant is to receive authority.36 The virtues of commutative and distributive
justice thus apply to citizens and sovereigns respectively.37 We shall see that this reformulation of
the site of distributive justice had important implications for the nature and status of property
rights.
Hobbes supported his redefinition of distributive justice as a virtue of arbitrators with a
second redefinition. From Leviathan onwards, he began thinking about distributive justice in
terms of the old Roman law definition of justice, associated with Ulpian (c.170-223): ‘justice is
the constant and perpetual will to give everyone his due/own’ (suum cuique tribuere).38 Scholastics
usually took this formula to signify both commutative and distributive justice (i.e. particular
justice).39 Hobbes, however, identified the dictum exclusively with distributive justice. He took
the definition literally: distributive justice really means giving each person his due (section three).40
The sovereign gives each his own by distributing ‘Lands, and Goods, [so] that each Man may
know what is proper to him, so as none other might pretend a right thereunto, or disturb him in
the use of the same. This distribution is Justice, and this properly is the same which we say is
ones own’ (DPS: 10).41 In other words, the sovereign fulfils his duty of distributive justice by
instituting rules of propriety. Considered as a norm, distributive justice no longer constitutes a
standard external to the actual division of rights to goods. Rather, since citizens are first given
their ‘own’ through the institution of propriety, distributive justice is the division itself.
34 Cf. EL: 16.5; EL: 17.2; DCv: 3.6; DCv: 3.15. 35 EL: 29.2; L: 42.96; L: 43.4-5; L: 46.31; DH: 13.9; DPS: 36. 36 EL: 21.2-3; DCv: 7.14; L: 18.3-4. 37 Both are examples of natural laws that oblige ‘only some condition of men’ (L: 26.14; cf. BH: 165-6). 38 Esp. L: 15.15; L: 24.5; DPS: 8-10, 35. For Ulpian’s definition, see Corpus Iuris Civilis, Institutiones, 1.1; Digest,
1.1.10. The Institutiones are discussed in L: 26.29-36. On Hobbes’s relation to the Roman law tradition, see Deborah
Baumgold, ‘Slavery Discourse before the Restoration: The Barbary Coast, Justinian’s Digest, and Hobbes’s Political
Theory’, History of European Ideas, XXXVI (4) (2010), pp. 412-8; Daniel Lee, ‘Hobbes and the Civil Law’, in Hobbes and
the Law, ed. David Dyzenhaus and Thomas Poole (Cambridge, 2012), pp. 210-35. 39 E.g. Aquinas, Summa Theologiae, II-II q.58.1; Suárez, De Legibus, I.ii.4. 40 For the suum cuique formula, see DCv: ED.9; DCv: 17.10; DCv: 18.3; L: 15.3; L: 15.15; L: 18.3; L: 24.5; L: 26.8; L:
30.12; L: 43.4; DPS: 8-10, 35. 41 Also L: 15.15, 24; L: 24.5; DPS: 35.
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Macpherson pays no attention to Hobbes’s creative reworking of the suum cuique formula.
He consequently misunderstands the site and object of Hobbesian distributive justice. He
wrongly assumes that Hobbes has a modern conception of distributive justice as social justice.
This is evident from his claim that ‘[d]istributive justice required that a society’s produce should be
distributed in proportion to men’s merits’.42 Yet neither Hobbes, nor any other seventeenth-
century thinker regarded societal property arrangements as subject to distributive justice. The
concept of social justice, or the fair division of social costs and benefits in a society, is widely
regarded to be at most two centuries old.43 In the early modern period, distributive justice was
understood as regulating the distribution either of one’s own or of common goods. For Hobbes,
distributive justice expresses the moral duty of arbitrators to allocate property rights fairly and
impartially. This suggests that for Hobbes, a person’s desert (what is due to her) is determined by
civil law, and not, as Macpherson claims, ‘by the actual competitive relationship between the
powers of individuals’.44 To corroborate this suggestion and grasp the full implications of
Macpherson’s misreading, the next sections analyse how Hobbes envisioned the relation between
distributive justice and property rights.
Before proceeding further, two last words about Hobbes’s eulogy of economic justice.
First, as noted, for Hobbes distributive justice is not a norm external to the actual division of
goods, but the division itself. Was Macpherson therefore right when he said that Hobbes
dismissed distributive justice as a norm regulating economic relations? Not completely. Hobbes
makes equity the moral norm governing the act of distributing. In fact, he subsumes distributive
justice under equity: ‘[what] men mean by distributive justice… is properly termed EQUITY’ (EL:
17.2).45 The natural law precept of equity commands fair distributions and impartial
jurisprudence, and prohibits corruption and partiality (‘acception of persons’).46 Impartiality and
fairness require treating humans as equals. Equity is met if the sovereign allocates rights to goods
in an equal manner, without regard of person. Subsequent laws of nature clarify what treating
humans as equals in practice requires.47 One of them mentions lot, described by Macpherson ‘as a
42 Macpherson, ‘Rise and Fall’, p. 9, emphasis added; also Macpherson, ‘Introduction’, p. 51. 43 E.g. David Miller, Principles of Social Justice (Cambridge, MA, 1999), pp. 2ff; Samuel Fleischacker, A Short History of
Distributive Justice (Cambridge, MA, 2004); Brian Barry, Why Social Justice Matters (Cambridge, 2005), pp. 4-5. 44 Macpherson, Possessive Individualism, p. 86. 45 Also DCv: 3.14; DCv: 14.14; L: 15.15; L: 15.24. 46 L: 15.24; also DCv: 14.14; L: 30.15. 47 L: 15.25-28; also EL: 17.3-5; EL: 18.7; DCv: 3.16-18; DCv: 4.14-15.
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standard deliberately emptied of all social valuation’.48 This is quite wrong. Lot is the morally
sound procedure for allocating indivisible goods which cannot be kept in common because this
procedure alone acknowledges human natural equality (L: 15.26). This brief discussion of equity
evinces that ‘economic justice’ did not die in the hands of Hobbes. It is true that Hobbes
recognized no independent criterion specifying what counts as a just arrangement of rights,
defined prior to the procedure (e.g. wealth, virtue, sex, age). Yet in the form of equity, distributive
justice continued to express non-market norms for the fair distribution of goods.49 While Hobbes
left economic justice seriously wounded, it wasn’t dead just yet.
Second, Macpherson’s explanation of what Hobbes was doing when stabbing at the
received notions of justice is problematic. Macpherson believes that Hobbes was adapting justice
to the new realities of the market-based society: ‘Hobbes is drawing the logical conclusions from
his model of [a possessive market] society’.50 Elsewhere he roundly declares: ‘Hobbes’s problem
was the legitimation of the early capitalist state’.51 It is somewhat surprising that Macpherson
ignores the obvious political advantages Hobbes’s redefinitions bring.52 By denying that justice
constitutes a substantive norm external to civil law, Hobbes ensures that the sovereign cannot act
unjustly. It allows him to claim that ‘there are no authentic doctrines of just and unjust… except
the laws established in each commonwealth’ (DCv: P.8).53 I will not outline these political
benefits further. This would not disprove Macpherson’s thesis, which is after all not about
Hobbes’s motives or intentions, but about ‘the social content of some of his assumptions’.54 It is
possible that Hobbes’s political conclusions are hostile to capitalism, yet based on possessive
individualist assumptions.55 Instead, I will analyse the theory of property implied by Hobbes’s
48 Macpherson, Possessive Individualism, p. 64. 49 This paragraph is indebted to Olsthoorn, ‘Hobbes’s Account’. It substantiates the confused but ultimately correct
objection of Berlin to Macpherson that ‘Hobbes does sometimes, however inconsistently, speak of iniquitous laws’.
Berlin, ‘Hobbes, Locke’, p. 457. 50 Macpherson, Possessive Individualism, p. 64. 51 Macpherson, ‘Hobbes’s Political Economy’, p. 145. 52 As noted by Letwin, ‘Economic Foundations’, pp. 156-7. 53 Also EL: 29.8; DCv: 6.9; DCv: 12.1; DCv: 17.10, 14; L: 18.10; L: 26.4; L: 29.6; L: 42.96; L: 46.11; DH: 13.9; DPS:
30; EW: 4, 370. 54 Macpherson, Possessive Individualism, pp. 14-5. 55 Likewise, Macpherson can coherently grant that Hobbes has aristocratic sympathies, while insisting that he has an
essentially bourgeois conception of man and society. Macpherson, ‘Introduction’, p. 52; Townshend, ‘Interrogating’,
pp. 54, 61-3.
11
two concepts of justice. My contention is that justice does not legitimate property allocation by
brute market forces, but rather the arbitrary sovereign demarcation of mine and thine.
2. ENFORCING THE JUSTICE OF CONTRACTORS
Hobbes radicalized the commonplace claim that private property is of conventional origin by
insisting that property is somehow existentially dependent on the State.56 Property rights (as
opposed to de facto possessions, which entail no correlative duties) have no place in the state of
nature.57 Goldsmith has pointed out that ‘Hobbes did not achieve his radical position in regard to
property rights easily’.58 Elements, it is true, already states that private property rights are ‘derived
from the sovereign power’ (EL: 24.2).59 Yet Goldsmith shows, citing a crossed-out paragraph in
Hobbes’s hand in the manuscript of Elements, that Hobbes initially accepted pre-political property
rights acquired through covenants. In its oldest version, the paragraph stated: ‘Of the law of
nature also it is: that entering into peace every man be allowed those rights which he had acquired
by the covenants of others. That is to say, right against him that have covenanted’. In its newer
form: ‘men entering in peace, retain what they have acquired’.60 I believe that Hobbes’s early
struggle with pre-political property rights explains two interpretive problems facing scholars. The
first concerns an anomalous remnant of natural self-ownership (section four). The second
concerns the question of in what sense private property is State-dependent.
We can distinguish three Hobbesian arguments for the State-dependency of property: the
Security, the Precision, and the Creation Argument. Each has independent textual support, and was
endorsed by Hobbes at some point in time. On the Security Argument, private property rights are
56 E.g. EL: 24.2; EL: 27.8; DCv: ED: 9; DCv: 6.15; DCv: 12.7; DCv: 14.9; DCv: 17.10; L: 15.3; L: 18.10; L: 24.5;
DPS: 9-10; DPS: 36-7. 57 On the distinction between property rights and possessions, see DCv: 14.7. Cf. C.B. Macpherson, ‘The Meaning of
Property’, in idem, Property: Mainstream and Critical Positions (Toronto, 1978), pp. 1-13. 58 Goldsmith, Hobbes’s Science, p. 199; M.M. Goldsmith, ‘Introduction’, in Hobbes: The Elements of Law, ed. Ferdinand
Tönnies (London, 1969), pp. xi-iii. 59 Also EL: 20.2; EL: 27.8. Goldsmith’s contention that ‘[i]n the Elements of Law men are expected to acquire property
in the state of nature’ is therefore dubitable. Goldsmith, ‘Introduction’, xiii. Cf. Johann Sommerville, ‘Lofty Science
and Local Politics’, in Cambridge Companion to Hobbes, ed. Tom Sorell (Cambridge, 1996), pp. 256-8. 60 Hobbes, The Elements of Law, ed. Ferdinand Tönnies (London, 1969), p. 89n. The preceding paragraph (EL: 17.2)
states: ‘Seeing then many rights are retained, when we enter into peace one with another, reason and the law of
nature dictateth, Whatsoever right any man requireth to retain, he allow to every other man to retain the same’. Cf. DCv: 3.14; L:
15.22.
12
non-existent in the natural condition because general insecurity invalidates any contract by which
agents could bind themselves to respect the rights of others. ‘Covenants, without the Sword, are
but Words, and of no strength to secure a man at all’ (L: 17.1). On this argument, the State does
not create property rights, but merely provides the safety necessary for private contracts to be
valid. Presumably, the first such contracts involved no transfers of rights (each agent already
having a right to everything). Rather, agents promised each other to refrain from interfering with
some particular set of goods.61 Danger rendered all such promises void – until the State with its
coercive power to punish pact-breakers came along.
The Security Argument is the most popular explanation for the State-dependency of
property amongst scholars, perhaps because it fits neatly with Hobbes’s well-known doctrine of
the invalidity of promises outside the commonwealth (L: 15.3).62 The argument sounds rather
impractical though: exclusive property rights would presuppose a myriad of bilateral contracts. By
allowing for tacit consent the worst such impracticalities are overcome – witness the theories of
Grotius and Pufendorf.63 Yet unlike these philosophers, Hobbes never explained when
appropriation from the commons can be assumed to be universally (if tacitly) consented with
(section three). These obvious difficulties notwithstanding, the Security Argument has clear textual
support. Consider the following passage from the 1642 De Cive: ‘each man has his own right and
property by particular contracts, so that one man may say of one thing and another of another thing
that it is his own’ (DCv: 6.1). Later in the same paragraph we learn that private property does not
yet exist in the state of nature ‘because there is as yet none of that security which we showed
above [DCv: 5.3] was a prerequisite of the practice of the natural laws’.
The Security Argument (which really applies to the maxims of natural law generally, and was
also endorsed by Locke and Kant) was from the start accompanied by the Precision Argument.64
The Precision Argument states that for property to be practically efficacious some measure of
precision is required, which humans, in perennial and passionate disagreement, cannot agree 61 Cf. EL: 15.3; EL: 22.3; DCv: 2.4; L: 14.6. 62 E.g. A.P. Martinich, A Hobbes Dictionary (Cambridge, MA, 1995), p. 236; Foisneau, ‘Leviathan’s Theory’, p. 109.
Sommerville attributes a version of the Security Argument to Hobbes: people cannot institute a scheme of property
rights in the natural condition, because the agreement it presupposes cannot be rendered binding due to the
prevailing insecurity. Sommerville, Thomas Hobbes, pp. 54-6, 165; Sommerville, ‘Lofty Science’, p. 257. 63 See the discussion in Buckle, Natural Law, ch. 1-2. Locke still objected: ‘If such a consent as that was necessary,
Man had starved, notwithstanding the Plenty God had given him’. Locke, Second Treatise, 5.28. 64 The terms ‘precision’ and ‘security’ are borrowed from Waldron. He attributes similar considerations to Locke in
The Right to Private Property, pp. 162-7. Jean Hampton ascribes a version of the Precision Argument to Hobbes in Hobbes
and the Social Contract Tradition (Cambridge, 1986), pp. 99-100.
13
upon. Sovereign arbitrage is needed to authoritatively specify what each person is due.65 The civil
law, Hobbes stresses, is the only common measure of mine and thine:
‘[A]ll disputes arise from the fact that men’s opinions differ about mine and yours, just and
unjust… and everyone decides them by his own judgement. Consequently, it is the
responsibility of the same Sovereign Power to come up with rules or measures that will be
common to all, and to publish them openly, so that each man may know by them what he
should call his own and what another’s’ (DCv: 6.9; also EL: 20.10).
Consider an example adapted from Waldron.66 Assume that everyone agrees that A has a right to
the field by the old oak tree. Yet absent agreement about where this field begins and ends (or
which is the oak tree in question) A’s property right will be nigh worthless.
Both the Security and the Precision Argument assume that private individuals have the
capacity to create provisional claims to property. By enforcing and authoritatively specifying
private contracts, the State elevates such pre-political claims into legally effective property rights.
As Zarka writes, ‘political power does not give property its content, but its legal efficacy’.67 The
two arguments thus make sense in relation to commutative justice or ‘the Justice of a Contractor’.
As Foisneau notes in connection to the Security Argument: ‘Since justice is embodied in keeping
covenants, and the state guarantees that these covenants will be honoured, Hobbes is right to say
that the state gives meaning to the terms ‘just’ and ‘unjust’’.68 Let citizens privately buy, sell,
barter, borrow and lend. The State, ‘as guarantor of private contracts, and particularly of private
property’ will make sure that these contracts are kept, keeping in line potential pact-breakers and
peacefully resolving conflicts between contracting parties.69 In Macpherson’s terms, the task of
the State is thus to ‘enforce the rules necessary for the operation of a [market society]’.70
The Security and Precision Argument thus provide some support to Macpherson’s thesis that
Hobbes’s redefined justice to legitimate a capitalist market society. Premised upon commutative
65 EL: 20.10; EL: 29.8; DCv: 6.9; DCv: 17.10, 12; EW: 4, 378. Cf. L: 6.5; L: 46.11; DH: 13.8-9. 66 Waldron, The Right to Private Property, p. 163. 67 Zarka, ‘La Propriété’, p. 589: ‘le pouvoir politique ne donne pas à la propriété sa matière, mais son effectivité
juridique’. 68 Foisneau, ‘Leviathan’s Theory’, p. 109. 69 Ibid., pp. 109, 114. 70 Macpherson, Possessive Individualism, p. 98, also 19, 29. Also Macpherson, ‘Hobbes Today’, p. 533; Macpherson,
‘Introduction’, p. 48; Macpherson, ‘Hobbes’s Political Economy’, p. 142.
14
justice (requiring the performance of valid covenants), both arguments assign to the State the
limited task of setting up the conditions required for private contractors to be able to mutually
engage in commercial transactions. Macpherson’s reading receives less support from the Creation
Argument, premised upon distributive justice. And to this argument, I claim, Hobbes eventually
turns in Leviathan.
3. THE CREATIVE JUSTICE OF ARBITRATORS
Instead of providing the conditions that allow individuals to obtain effective property rights, the
State actually creates these rights on the Creation Argument. The sovereign introduces private
property by arbitrarily carving out mine and thine from the common stock, giving each their own
through distributive civil laws. In a possible allusion to Cicero’s De Legibus, Hobbes writes:
‘the Introduction of Propriety… is the act onely of the Soveraign; and consisteth in the Lawes,
which none can make that have not the Soveraign Power. And this they well knew of old,
who called that Nomos, (that is to say, Distribution,) which we call Law; and defined Justice, by
distributing to every man his own’ (L: 24.5).71
The sovereign is thus literally the source of all property. This radically conventionalist theory of
property is defended at length in Leviathan and the Dialogue.72 It is not found in the earlier works
because, I argue, it presupposes a conception of distributive justice as a virtue of arbitrators first
introduced in Leviathan.
The Creation Argument is premised on distributive justice, understood as the will ‘to
distribute to every man his own’ (L: 15.15). The maxim ‘give each person his due’ (suum cuique
tribuere) is often understood metaphorically as ‘respect another’s rights’.73 This is not how Hobbes
understood the dictum. He took the ‘tribuere’ in the formula literally: distributive justice is done
by really giving each his own, i.e. by instituting ‘propriety’ and demarcating mine from thine. Only a
literal reading explains why distributive justice is ‘the Justice of an Arbitrator’ (L: 15.15) – after all,
citizens can respect others’ rights, too. The non-metaphorical reading also explains why Hobbes
associated the formula exclusively with distributive justice (and not also with commutative
justice). Further support is found in the Dialogue: ‘Justice is the constant will of giving to every 71 Cf. Cicero, De Legibus, I 19. 72 L: 15.15; L: 24.5-10; DPS: 9-10, 36, 192-5. 73 E.g. Aquinas, Summa Theologiae, II-II, q.58.1 ad 5.
15
Man his own; that is to say, of giving to every Man that which is his Right, in such a manner as to
Exclude the Right of all Men else to the same thing’ (DPS: 35). It is difficult to see how citizens
can respect another person’s right (to φ) in such a way as to exclude the right of all others (to φ).
The laws which introduce propriety Hobbes calls ‘distributive laws’, in contradistinction
to penal laws.74 Penal laws speak to officers, declaring the penalties that should be inflicted for
specific crimes. Distributive laws speak to citizens, defining the rights citizens have against each
other: ‘the law by which his own right is distributed to each man, that is, the law which lays out
the rules for all things, by which we may know what belongs to us and what to others’ (DCv:
14.6).75 In line with Hobbes’s general conception of law as restraint, the allocation of propriety is
understood not as enabling citizen’s conduct, but as curtailing it by diminishing the amount of
lawful actions open against fellow-citizens.76 A’s propriety in x consists in obligations (imposed
by law) on A’s fellow-subjects not to interfere with A’s enjoyment of x. ‘[W]hat Goods [a person]
may enjoy, and what Actions he may doe, without being molested by any of his fellow Subjects:
And this is it men call Propriety’ (L: 18.10).
Strictly speaking, propriety differs from right. Right, for Hobbes, is a kind of liberty: an
absence of obligation. To have a right to φ means to be at liberty to φ (or not to φ).77 Hobbesian
rights are akin to Hohfeldian privileges.78 Propriety, by contrast, consists in obligations citizens
have with respect to (the goods of) another subject. Injustice consists in actions without right.
Since being under an obligation (not to φ) means lacking the right (to φ), any violation of
propriety is unjust.79 Interfering with A’s right, by contrast, is not unjust per se. On Hobbes’s
theory, acting unjustly towards A consists not in violating A’s right, but in acting towards A
without right (by breaking an agreement or the law). The difference between propriety and right
is important for understanding why individuals have no propriety outside the State – not even in
their own bodies. I return to this below.
Distributive laws establish both what and in what way citizens can trade, thus creating the
legal framework enabling commercial transactions. Liberties permitted to citizens by (the silence
74 DCv: 14.6-7; L: 26.38; cf. EL: 29.6. 75 Also L: 18.10; L: 26.38. 76 EL: 29.5; DCv: 14.3; L: 14.3; L: 26.43; DPS: 37. 77 E.g. L: 14.3; L: 26.44. 78 W.N. Hohfeld, ‘Fundamental Legal Conceptions, I’, in idem, Fundamental Legal Conceptions, ed. W.W. Cook (New
Haven, 1923), pp. 35-50. 79 E.g. DCv: 3.3; L: 14.7. Cf. the marginalia to L: 18.10: ‘Rules, whereby the Subjects may every man know what is so
his owne, as no other Subject can without injustice take it from him’.
16
of) the law include the right ‘to buy, and sell, and otherwise contract with one another’ (L: 21.6).
Hobbes insists, however, that all rules about holding, transferring and enjoying goods (rules of
contracts, of inheritance, &c.) are conventional, and determined by the sovereign.80 Some
distributions (e.g. of spoils of war) are concrete hand-outs to particular persons. Hobbes
discusses the division of land by the victorious Israelites to twelve tribes and by William the
Conqueror to ‘English-men and others’.81 Other distributive laws are more abstract formulations
determining when a property right is obtained, e.g. ‘let that be yours which you have caught with your own
net in the sea’ (DCv: 14.7).
On the Creation Argument, the sovereign institutes propriety ex nihilo, as it were, by
imposing obligations on subjects through distributive laws. The property rights thus created do
not supervene on dikaiologically ineffective pre-existing claims to property (based on first seizure,
private contracts, &c.). Like any sovereign act, the institution of property is arbitrary in the sense
that it depends entirely on the sovereign’s will and discretion (L: 24.6).82 This does not mean that
the distribution of property is morally arbitrary. Equity, Leviathan’s eleventh law of nature, governs
the allocation of propriety. It commands arbitrators to distribute rights to goods equally and
impartially, i.e. without respect of persons:
‘if a man be trusted to judge between man and man, it is a precept of the Law of Nature, that he
deale Equally between them... The observance of this law, from the equall distribution to each
man, of that which in reason belongeth to him, is called EQUITY, and... distributive Justice’
(L: 15.23-4).
Subsequent laws of nature spell out which procedures are equitable for different kinds of goods.83
For example, rights to things which can neither be divided, nor be enjoyed in common, ‘ought to
be adjudged to the First Possessor; and in some cases to the First-Borne, as acquired by Lot’ (L:
15.28).
80 L: 24.10; L: 26.38; DCv: 17.10: ‘Our Saviour… gave no rules by which a citizen could know how to distinguish
what is his own from what is another’s, nor what were the appropriate formulae, words or circumstances for giving,
passing, entering upon, and possessing a thing, so that it would be regarded as rightly belonging to the recipient, entrant or
possessor. The only inference possible is that individual citizens should get those rules from the commonwealth.’ 81 L: 24.6; DPS: 193-201; BH: 266. 82 For Hobbes’s use of ‘arbitrary’, see L: 24.8; L: 28.10; L: 31.10-11; L: 46.35; L: R&C.8. 83 The claim that equity should be understood as a form of pure procedural justice is advanced in Olsthoorn,
‘Hobbes’s Account’, pp. 29-31.
17
It does not follow that primogeniture and first seizure generate provisional claims to property
which are afterwards validated by civil law. Dividing goods according to first seizure undeniably
bases property titles on previous actions (namely, first seizure). Yet the rights to these goods are
created ex nihilo by distributive laws – not by enforcing or specifying pre-existing claims to
property, but by literally giving each his own. The laws of nature expound how rights to goods
should be allocated; they do not themselves allocate rights. Merit, Hobbes insists, is always due to
promise (in contract or gift). Natural law may declare a person worthy to own some good,
because she possessed it first or is the first-born. But worthiness does not equal merit: ‘merit
presupposes a right resulting from a promise, whereas worthiness does not presuppose a right’
(LL: 10.53).84 Moreover, inequitable laws are legally valid, and create property rights just the same.
When the sovereign fails to give a subject what ‘in reason belongeth to him’, he is accountable to
God alone. To his subjects, who authorized his every action, his word is law: ‘whatsoever is
commanded by the Soveraign power, is as to the Subject (though not so always in the sight of
God) justified by the Command; for of such command every Subject is the Author’ (L: 22.15).85
The possibility of legally valid inequitable laws shows that distributive laws create property rights
ex nihilo, even though the sovereign is morally and rationally obliged to divide goods equitably.86
The Creation Argument is not defended before Leviathan. The earlier political tracts
occasionally state that property ‘came… from the commonwealth’ (DCv: 12.7).87 Yet the
argument for this was negative. Since the natural right to all things rules out exclusive property
rights, the latter presuppose alienation of natural right. As this alienation occurred with the
advent of the State, in a sense otherwise unspecified ‘property and commonwealths came into
being together’ (DCv: 6.15).88 A positive argument had to await Hobbes’s redefinition of
84 As Hobbes states in the context of land division: ‘Subjects... have no title at all to demand any part of the Land, or
any thing else but security’ (DPS: 193). 85 Also EL: 21.3; EL: 28.1; DCv: 6.13n; DCv: 7.14; L: 18.6; L: 21.7; L: 24.7; L: 26.23; EW: 5, 177-8; DPS: 31. 86 The same analysis applies to the sovereign’s duty to provide necessities of life to those unable to work. This duty,
too, is owed only to God. L: 30.18; LL: 30.18. Interpreting the laws of nature as guidelines to how property rights
must be allocated, rather than as themselves allocating these rights, removes the tension Pierson perceives between
the sovereign’s absolutism and the “rather extraordinary account of the proper basis of the initial allocation of
property” expressed by natural law. Pierson, Just Property, pp. 176-7, 187. 87 Also EL: 24.2; DCv: 13.17. 88 EL: 20.2; EL: 27.8; DCv: 12.7; DCv: 14.7, 9. DCv: 12.7 forms a confusing exception to this rule. It states that
propriety originated in each person’s renunciation of the right to everything to the commonwealth: ‘Tell me, then,
where this property came to you from, if not from the commonwealth? And from where did it come to the
commonwealth, except that each man transferred his right to the commonwealth?’ The passage suggests that the
18
distributive justice as a virtue of arbitrators. Only then could he justifiably claim that sovereigns
‘distribute to every man his own’ (L: 15.15), so ‘that each Man may know what is proper to him’
(DPS: 10). As argued in section one, this new account of distributive justice, with its concomitant
non-Aristotelian conception of merit, is first developed in Leviathan.89 Henceforth, ‘a person’s
property’ is no longer ‘what he can keep for himself by means of the law’ (DCv: 6.15). It is what
distributive laws have allotted to him.
The new prominence of the Creation Argument is manifest in Hobbes’s justification of
distributive law. Elements and De Cive invoke the Precision Argument: a common measure is needed
to prevent constant quarrels about what belongs to whom.90 On this justification, distributive
laws authoritatively specify to quarrelsome subjects what belongs to each. It thus presupposes
pre-political claims to property (however insecure). Leviathan, by contrast, simply restates the
Creation Argument: by instituting mine and thine, distributive laws end the ‘right to all things; which
necessarily causeth Warre’ (L: 18.10). The claim that the natural right to everything rules out
propriety is already found in Elements.91 Yet such ‘common ownership’ is not, prior to Leviathan,
ended by coercive allocation of exclusive rights through distributive law. Rather, the commonality
of goods was resolved by alienating natural right in private contracts, the validity of which
depends on safety provided by the State.
Why did Hobbes opt for the Creation Argument? The main advantage of this argument is
that it adequately explains which goods are up for trade. The Security and Precision Argument suffer
from Hobbes’s failure to explain how agents can lawfully appropriate from the common stock
and simultaneously impose obligations on all other agents to respect their claim to the
appropriated goods.92 Both arguments assume the existence of provisional claims to property,
which the State merely needs to enforce and specify. Where do these provisional titles come
sovereign redistributes rights received in the original covenant, as noted by Sommerville, Thomas Hobbes, p. 95.
Envisioning how this redistribution works is difficult, given Hobbes’s diverging conceptions of natural right as
liberty-rights, and of propriety as claim-rights. 89 Although De Cive alludes to the suum cuique formula several times (DCv: ED.9; DCv: 17.10; DCv: 18.3), only once
does it hint at its future use of a ‘sovereign virtue’ (DCv: 14.6, on distributive laws). De Cive consistently presents
distributive justice as a virtue of citizens (DCv: 3.6, 15, 32). Furthermore, not the sovereign, but ‘humans have
distributed what nature had placed in common’ (DCv: ED.9, emphasis added). 90 EL: 20.10; EL: 29.8; DCv: 6.9. Cf. DCv: 14.6. 91 EL: 20.2; EL: 24.2; EL: 27.8. Also DCv: 6.1, 15; DCv: 12.7; DCv: 14.7, 9. 92 ‘Hobbes said very little about how property was acquired and transferred – the very questions which made up the
bulk of the work of early modern natural lawyer’. Michael Lobban, ‘Thomas Hobbes and the Common Law’, in
Hobbes and the Law, ed. David Dyzenhaus and Thomas Poole (Cambridge, 2012), p. 40, also pp. 61-2.
19
from? If all the State must do is enforce private contracts, then how did citizens acquire a right to
the goods traded away?
One possible solution to the problem of initial acquisition is postulating a natural right to
the product of one’s labour. Hobbes, however, altogether rejects the possibility of propriety
without consent (section four). Nor does he embrace the historically dominant ground of pre-
political property rights: explicit or tacit consent outside the State. According to Grotius, ‘the
Original of Property… resulted from a certain Compact and Agreement, either expressly, as by a
Division; or else tacitly, as by Seizure’ (DIB: 2.2.2.5). To avoid conflict and promote commodious
living, humans tacitly agreed that long possession and first acquisition generate property titles. As
Pufendorf pointed out, the exclusive nature of propriety requires the consent of all: ‘that one
Man’s seizing on a thing should be understood to exclude the Right of all others to the same
thing, could not proceed but from mutual Agreement’.93 Hobbes’s conflict-ridden state of nature,
however, has no place for stable conventions. People, subject to passions and partial to their own
interests, cannot even agree on what natural law requires (DH: 13.8-9). The only thing humans
agree on is that the natural condition must be left by instituting a final arbitrator to authoritatively
decide on all things that might fall into controversy, including issues of mine and thine.94
Natural law, assented to by all rational individuals, provides criteria for morally adequate
divisions of rights (L: 15.25-8). Yet, as noted, these laws do not themselves allocate rights (‘a
due’); they rather constitute guidelines to arbitrators. For Hobbes, to have something as ‘due’
presupposes some agreement or gift (L: 10.54; L: 14.17). Even the pre-political property rights in
the passage deleted from Elements are acquired by covenants, rather than granted by natural law.
In principle, humans could agree to divide provisional property titles amongst themselves in
accordance with natural law principles. Yet Hobbes’s bleak view on the possibility of extra-Statist
consensus suggests they won’t. This complicates the Security and Precision Arguments, as they
presuppose provisional property titles. Elements suggests that a person can acquire property
outside the commonwealth if another agrees to give away ‘his right of common’ (EL: 17.3).
However, as an older variant points out, this right holds only ‘against him that have
covenanted’.95 Incalculable bilateral agreements are thus needed for full-fledged property rights to
arise.96 In light of perennial disagreement amongst Hobbesian agents, rights are more plausibly
established by sovereign gift, than by countless private contracts. 93 Pufendorf, Of the Law of Nature and Nations, 4.4.4. 94 E.g. EL: 29.8; DCv: 6.9; L: 5.3. 95 Hobbes, The Elements of Law, ed. Tönnies, p. 89n. 96 Goldsmith, ‘Introduction’, xii.
20
Moreover, unlike the two other arguments, the Creation Argument explains why private
property rights do not exclude the sovereign. Hobbes emphasizes throughout his works that
‘propriety’ expresses exclusive rights citizens may uphold against fellow-subjects, not against the
sovereign. ‘Propriety therefore being derived from the sovereign power, is not to be pretended
against the same’ (EL: 24.2).97 Neither the Security, nor the Precision Argument explains why this is
so. How would enforcing private contracts and peacefully arbitrating disputes between
contracting parties make the sovereign rightful master over private property? Elements and De Cive
advance an independent argument instead, maintaining that the sovereign owns the property of
his citizens, just as a master owns the property of his slaves (EL: 22.4; DCv: 8.5). The Creation
Argument, by contrast, can draw on the established Hobbesian doctrine that the sovereign is not
subject to civil law (e.g. L: 26.6; L: 29.9). The sovereign can at will alter and withdraw distributive
laws – and hence the property rights they institute.
What happens to the Security and the Precision Argument in Leviathan? While enforcement of
private contracts and arbitrage of disputes remain necessary for effective property rights, the two
arguments are no longer invoked to explain the State-dependency of property. The Creation
Argument takes over this role.98 However, the Security Argument continues to explain the non-
existence of injustice in the state of nature (L: 15.3). And remnants of the Precision Argument are
found in the doctrine that the civil law constitutes the authoritative measure of good and evil, just
and unjust, &c. (e.g. L: 46.11; DH: 13.8-9).
So far I have spoken about rights over things. Yet in line with seventeenth-century
usage,99 Hobbes understands ‘property’ and ‘propriety’ (Latin: proprietas) in a broad sense as
including any entitlement the right-holder can lawfully claim his own ‘in such manner as to
97 Also EL: 27.8; DCv: 6.15; DCv: 8.5; DCv: 12.7; L: 24.7; L: 29.10-11; L: 30.14; DPS: 200. Pace Macpherson, the
perennial insecurity generated by citizens’ incapacity to uphold property rights against the State, makes Hobbes’s
theory of property not very conducive to the interests of possessing classes. Thomas, ‘Social Origins’, pp. 222-7. 98 The Security Argument recurs in the Latin Leviathan: ‘before the names of Just, and Unjust can have place, there must
be some civil power which can avenge the violation of covenants, and assure to each person that property of his
which he has acquired by covenants’ (LL: 15.3). Cf. L: 15.3; L: 30.1. 99 Locke, for example, employs the term ‘propriety’ in a similarly broad sense. Jacob Viner, ‘“Possessive
Individualism” as Original Sin’, The Canadian Journal of Economics and Political Science, XXIX (4) (1963), pp. 548-59; Alan
Ryan, ‘Locke and the Dictatorship of the Bourgeoisie’, Political Studies, XIII (1965), pp. 210-30; Karl Olivecrona, ‘The
Term “Property” in Locke’s Two Treatises of Government’, Archiv für Rechts- und Sozialphilosophie, LXI (1975), pp. 109-15.
21
Exclude the Right of all Men else to the same thing’ (DPS: 35).100 ‘Propriety’ signify anything that
is ‘proper’ to a person, including a ‘right or liberty of action’ (L: 26.38; also DCv: 17.10). ‘[W]hat
Goods [a man] may enjoy, and what Actions he may doe, without being molested by any of his
fellow Subjects: And this is it men call Propriety’ (L: 18.10). ‘Of things held in propriety, those that
are dearest to a man are his own life, & limbs; and in the next degree, (in most men,) those that
concern conjugall affection; and after them riches and means of living’ (L: 30.12). Propriety is
used interchangeably with meum and tuum.101 The latter terms also have a wide field of application:
‘[C]oncerning Mens Titles… some Goods are Corporeal, as Lands, Money, Cattel, Corn, and
the like, which may be handled, or seen; and some Incorporeal, as Priviledges, Liberties,
Dignities, Offices, and many other good things, meer Creatures of the Law, and cannot be
handled or seen: And both of these kinds are concerning Meum, and Tuum’ (DPS: 45).
This broad conception of propriety may lead us to think that distributive laws bring into
existence all enforceable rights citizens have against each other. Leviathan’s account of distributive
laws and propriety certainly allows for such a radically conventionalist theory. Yet we need not
adopt this reading: perhaps exclusive rights to one’s ‘own life, & limbs’ are generated by the
collective renunciation of the right to everything, rather than by sovereign demarcation of mine
and thine. Nevertheless, on both accounts, law is a necessary condition for the existence of any
exclusive personal rights, including to one’s own body. For Hobbes, all exclusive rights are of
conventional origin, whether created by mutual covenant or by authoritative allocation through
civil law. This insight is problematic for Macpherson: his possessive individualist reading
presupposes an account of natural self-ownership absolutely alien to the philosopher from
Malmesbury.
4. HOBBES’S DENIAL OF NATURAL SELF-OWNERSHIP
A comprising assumption of possessive individualism is natural self-ownership: ‘The individual is
essentially the proprietor of his own person and capacities, for which he owes nothing to
100 Leviathan consistently employs the term ‘propriety’ to signify exclusive rights; it uses ‘property’ only in its technical
sense of ‘accident’ (L: 24.10, L: 31.37, L: 38.4; L: 42.50, L: 44.22). Elsewhere ‘property’ and ‘propriety’ are used
interchangeably (e.g. EL: 22.5, 8; EL: 27.8; DPS: 36, DPS: 192-3). 101 E.g. DCv: 6.15; DCv: 12.7; L: 15.3; L: 24.5.
22
society’.102 What Macpherson exactly means with self-proprietorship is not completely clear. The
term appears to capture at least two ideas: 1) humans as egoistic and infinitely desirous
consumers of utility; and 2) as rightful owners of their own labour (if nothing else). In both
respects individuals owe nothing to society. So understood, possessive individualism has a
psychological and a juridical dimension.103 This section questions the appropriateness of
attributing juridical self-ownership to Hobbes.
Juridical self-ownership is a necessary postulate of the possessive market society model
Macpherson attributes to Hobbes.104 On this model, the primary task of the State is to enforce
and authoritatively define private contracts. Possessive market societies are distinctive in having a
market in labour as well as in products. Commodification of labour presupposes some form of
self-ownership, namely the right to sell one’s labour and its fruits. It is true that Hobbes accepts
commodification of labour: ‘a mans Labour also, is a commodity exchangeable for benefit, as
well as any other thing’ (L: 24.4).105 I deny, however, that this implies that a person is ‘absolute
natural proprietorship of his own capacities’.106
I do not dissent that Hobbesian agents have a bundle of natural rights part of which they
contract away upon entering society. Nor do I dispute that Hobbes took over Grotius’s ‘modern’
concept of subjective rights (‘moral powers’ or freedoms the right-holder has).107 What I deny is
that this bundle of natural rights involves claims of self-ownership in the relevant sense of posing
limits on how others may lawfully treat you. The extensive natural rights Hobbesian agents have
102 Macpherson, Possessive Individualism, p. 263, also pp. 3, 54-5, 264. C.B. Macpherson, Democratic Theory: Essays in
Retrieval (Oxford, 1973), p. 199: ‘Man, the individual, is seen as absolute natural proprietor of his own capacities,
owing nothing to society for them. Man’s essence is freedom to use his capacities in search of satisfactions…
Freedom is therefore possession. Everyone is free, for everyone possesses at least his own capacities’. Cf. David
Miller, ‘The Macpherson Version’, Political Studies, XXX (1) (1982), pp. 120-7. 103 Tully, ‘The Possessive Individualist Thesis’, p. 27. On the history of the idea of self-ownership, see Janet
Coleman, ‘Pre-Modern Property and Self-Ownership Before and After Locke; or, when did Common Decency
Became a Private Rather than a Public Virtue’, European Journal of Political Theory, IV (2) (2005), pp. 125-45. 104 Macpherson, Possessive Individualism, pp. 53-68, 105-6, 263-5. 105 For additional support, Macpherson refers to Hobbes’s definition of a man’s value as price (L: 10.16).
Macpherson, Possessive Individualism, p. 37; Macpherson, ‘Hobbes’s Political Economy’, pp. 137-9. Cf. Macpherson,
Possessive Individualism, pp. 66ff. 106 On Hobbesian individuals as commodity-owners, see Macpherson, ‘Hobbes Today’, pp. 532-3; Macpherson,
‘Introduction’, pp. 48-51; Macpherson, ‘Hobbes’s Political Economy’, pp. 137-9. 107 DIB: 1.1.4. See Karl Olivecrona, ‘The Concept of a Right according to Grotius and Pufendorf’, in idem, Law as
Fact (London, 1971), pp. 275-96; Knud Haakonssen, ‘Hugo Grotius and the History of Political Thought’, Political
Theory, XIII (2) (1985), pp. 239-65.
23
cannot be claimed or upheld against others. Individuals are not naturally ‘owed’ such rights. For
Hobbes, all propriety – even the right to one’s body – is conventional, and presupposes the State.
In other words, I deny that natural self-ownership, an essential element of possessive
individualism, is a premise of Hobbes’s theory of property.
Zarka disagrees with me on this point: ‘But this dependency [of property on the State]
cannot be justified except by reference to a more fundamental absolute: the property each has in
his own body and limbs’.108 This is questionable. Hobbes endorses natural self-ownership only
once – in EL: 23.1, in the context of parental rights over offspring: ‘every man by the law of
nature, hath right or propriety to his own body’. Significantly, Hobbes justifies the claim by
reference to EL: 17.2 – the passage Goldsmith discovered was amended. So Hobbes’s only
endorsement of self-ownership purports to be validated by a passage that didn’t even make it into
the 1640 manuscript of Elements. In all likelihood, Hobbes ditched the idea of self-ownership
before 1640, but forgot to remove the reference to it in Element’s chapter on patrimonial
kingdoms. Parallel passages to EL: 17.2 and EL: 23.1 in De Cive and Leviathan confirm this: nil
references to self-ownership.109
For Hobbes, if not for Macpherson,110 property rights are by definition exclusive rights.
‘What is required for a man to have property in goods is not that he may be able to use them, but
that he alone may be able to use them’ (DCv: 14.7, emphasis added). Exclusive property rights are
non-existent ‘in the state of nature where all things are common to all men, the same thing is
both yours and another’s’ (DCv: 14.7).111 Nothing is exclusively mine as long as other agents
retain their right to all things. The right to everything extends ‘even to one anothers body’ (L:
14.4). This claim directly contradicts any meaningful form of self-ownership. It reminds us that
Hobbesian natural rights are peculiar in entailing no corresponding duties on others to respect
these rights. Nothing is due to us by nature; absent any agreement to the contrary, our life, limb
and liberty may be invaded without injustice.
In the natural condition, ‘any one may legitimately subdue or even kill Men, whenever
that seems to be to his advantage’ (DCv: 8.10; also EL: 22.9). The rationale behind this claim is
108 Zarka, ‘La Propriété’, p. 595: ‘Mais cette relativité ne peut se justifier que par référence à un absolu plus
fondamental, la propriété que chacun a sur son corps et sur ses membres’. 109 Compare EL: 17.2 with DCv: 3.14; L: 15.22; L: 21.11-12. Compare EL: 23.1 with DCv: 9.1-2; L: 20.4-5. 110 Macpherson, ‘The Meaning of Property’, p. 4. 111 EL: 14.10; EL: 24.2; EL: 27.8; DCv: ED.9; DCv: 1.10; DCv: 6.15; DCv: 12.7; DCv: 14.7-9. According to
Leviathan, outside the State ‘every thing is his that getteth it, and keepeth it by force; which is neither Propriety, nor
Community; but Uncertainty’. L: 24.5; also L: 13.13; L: 15.3; DPS: 9-10; DPS: 36-37.
24
not that self-defence trumps the rights of other agents not to be harmed. Rather, it is because
reason dictates agents to sincerely attempt to pursue peace as the most advantageous course of
action. The laws of nature do not express duties owed to others; they are mere moral and rational
desiderata. For this reason, absent civil law or some valid agreement to the contrary, no action
can wrong another agent. In the state of nature ‘[m]en are justly killed… for where there is no
law, there no killing, nor any thing else can be unjust’ (EW: 5, 152). For without law, all belongs
to all: ‘Without law every thing is in such sorts every Mans, as he may take, possess and enjoy
without wrong to any Man, every thing, Lands, Beasts, Fruits, and even the bodies of other Men’
(DPS: 9).112
The denial of natural self-ownership is presupposed in Hobbes’s definition of injustice as
‘the not Performance of Covenant’ (L: 15.3). This definition assumes that ‘[t]here can therefore be no
wrong against a particular man except after transfer of a right to him’ (DCv: 3.4n). All wrongs or
injuries are breaches of promises only because nothing is due to us by nature. Had Hobbes
allowed for natural rights that cannot be infringed without injustice, then he could not
consistently have claimed that a ‘wrong and unjust action or failure to act have the same meaning,
and both are the same as breaking an agreement or breaking faith’ (DCv: 3.3).
What about the right of nature? According to Tuck, this right implies ‘a minimal level of
private property, at least of a kind, in the state of nature’, since it entitles everyone ‘to the material
objects necessary for their survival: food, water, housing, and so on’.113 The right of nature
persists in the State in the form of inalienable rights to resist force with force, to take necessities
of life and to refuse dangerous and dishonourable tasks unnecessary for the commonwealth’s
survival.114 Surely inalienable rights are, in some sense, ‘our own’? Perhaps. But they do not
qualify as propriety on Hobbes’s account. For Hobbes, ‘RIGHT, consisteth in liberty to do, or to
forbeare’ (L: 14.3). Inalienable rights permit citizens to disobey the sovereign ‘without Injustice’
(L: 21.10). They are privileges: citizens are ‘under no duty not to’ disobey. Propriety, by contrast,
consists not so much in liberty, as in obligations of others not to interfere with the owner’s
enjoyment of the thing owned. A thing is exclusively my own only if others cannot lay claim to it.
Hobbesian natural right is neither exclusive, nor regulated by justice: others are under no
112 Cf. L: 13.10; DCv: 14.9; L: 18.5; L: 20.10; L: 27.3; DPS: 36. 113 Richard Tuck, Hobbes (Oxford, 1989), p. 70 114 L: 21.10-17. For extensive discussion, see Susanne Sreedhar, Hobbes on Resistance: Defying the Leviathan (Cambridge,
2010).
25
obligation to respect my natural right and may rightly claim the same object.115 Infringing
property rights, by contrast, is unjust – in virtue of violating obligations (injustice being nothing
else than an action without right). The right of nature is logically independent of the justice-
governed entitlements constituting mine and thine. Thus, pace Tuck, the inalienable right to ‘take
the food by force, or stealth’ without which one cannot live does not equal a right of property
(which others should respect as a matter of justice).116 It merely excuses actions that would
otherwise be unjust, and has no normative implications for others. In this respect, the Hobbesian
right of necessity differs markedly from that of the tradition.117
Hobbes’s plain rejection of natural personal rights governed by justice – even to life and
liberty – constitutes a foundational, if often overlooked, premise of his practical philosophy.118 It
contrasts sharply with the central role of the natural suum in Grotius, Pufendorf and Locke.119
The suum ‘denotes the realm over which the individual is sovereign’.120 A failure to respect the
rights naturally due to each agent wrongs the right-holder. According to Grotius, ‘[a] Man’s Life
is his own by Nature… and so is his Body, his Limbs, his Reputation, his Honour, and his
Actions’ (DIB: 2.17.2.1, also DIB: 1.2.5.7). These natural property rights cannot be violated
115 Tuck elsewhere points out that Hobbes endorsed the Roman law idea, revived by sixteenth-century humanists,
that both parties in a conflict may be acting with right. Richard Tuck, The Rights of War and Peace: Political Thought and
the International Order From Grotius to Kant (Oxford, 1999), p. 31. 116 L: 27.26; cf. EL: 17.2; DCv: 3.14; L: 21.12; LL: 30.18. 117 On the right of necessity, see Buckle, Natural Law, pp. 45-8, 108-20, 160-1; S.G. Swanson, ‘The Medieval
Foundations of John Locke’s Theory of Natural Rights: Rights of Subsistence and the Principle of Extreme
Necessity’, History of Political Thought, XVIII (3) (1997), pp. 399-458; John Salter, ‘Grotius and Pufendorf on the Right
of Necessity’, History of Political Thought, XXVI (2) (2005), pp. 284-302; Siegfried Van Duffel and Dennis Yap,
‘Distributive Justice Before the Eighteenth Century: The Right of Necessity’, History of Political Thought, XXXII (3)
(2011), pp. 449-64. 118 That is, overlooked today. George Lawson wrote in 1657 that Hobbes’s rejection of a natural suum ‘makes all men
brutes, nay wild and ravenous beasts, and birds of prey’. See ‘An Examination of the Political Part of Mr. Hobbs his
Leviathan’ in Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes, ed. G.A.J. Rogers (Bristol, 1995)
pp. 67–8. Pufendorf states that animals have no suum in On the Law of Nature and Nations, 4.4.5. An exception is
Martin Harvey in ‘Grotius and Hobbes’, British Journal for the History of Philosophy, XIV (1) (2006), pp. 41-4 and in
‘Hobbes’s Voluntarist Theory of Morals’, Hobbes Studies, XXII (1) (2009), pp. 51-5. 119 For an excellent discussion, see Karl Olivecrona, ‘The Two Levels in Natural Law Thinking’, ed. Thomas
Mautner in Jurisprudence, I (2) (2010), pp. 197-224. See also Karl Olivecrona, ‘Appropriation in the State of Nature:
Locke on the Origin of Property’, Journal of the History of Ideas, XXXV (1974), pp. 211-30; Tully, Discourse on Property,
pp. 80-90, 112-4; Buckle, Natural Law, pp. 29-37, 77-80, 91-2, 169-74. 120 Mautner in Olivecrona, ‘Two Levels’, p. 202.
26
without injustice: ‘For our Lives, Limbs, and Liberties, had still been properly our own, and could
not have been, (without manifest Injustice) invaded’ (DIB: 1.2.1.5).121 Pufendorf likewise claimed
that agents by nature have a right to their own ‘life, body, chastity and liberty’.122 And Locke
famously maintained that ‘every Man has a Property in his own Person. This no Body has any Right
to but himself’.123 No such claim is found in Hobbes’s corpus. Indeed, Hobbes explicitly
distinguishes between harm (damnum) and wrong (injuriam), the latter consisting in a breach of
covenant (DCv: 3.4). It is noteworthy, furthermore, that Hobbes nowhere affirms the Lockean
ground of self-ownership: that God gave us our bodies for some purpose, and that our bodies
ultimately belong to Him.124
Despite Hobbes’s encompassing conception of ‘propriety’, the Creation Argument need not
be extended to all rights citizens have against one another. Upon entering the commonwealth,
individuals collectively renounce their right to all things, thus incurring obligations
(conceptualized as ‘absence of right’). Combined, these obligations arguably suffice to establish
some types of propriety. If citizens relinquish their right to pre-emptively attack and harm others
in the original covenant, then this amounts to granting each an exclusive right to bodily integrity.
The creation of some exclusive personal rights could thus be explained without reference to
distributive laws. Grounded in a mutual promise of non-interference, these rights are then
regulated by commutative justice and depend on the State in the sense explained by the Precision
and Security Argument.
An objection against this suggestion is that citizens do not divest any rights to fellow-
citizens in the original covenant. Citizens mutually covenant to freely transfer their rights to a
third-party beneficiary: the sovereign (DCv: 6.20; L: 17.13).125 The only mutual obligation citizens
acquire is the duty to obey the civil law. It is unclear whether alienation of right to the sovereign,
in combination with the mutual promise to respect this free gift, can generate the obligations
constitutive of personal property rights. In any case, the argument cannot be extended to rights
over things because Hobbes does not explain how individuals can obtain property titles in the
121 The suum thus consists of perfect rights, with corresponding obligations on others to respect these rights (DIB:
1.1.8.1). Before the introduction of private property, agents have a right not to be hindered from appropriating
goods for consumption from the common stock, the violation of which is ‘a real Injury’ (DIB: 1.2.1). 122 Pufendorf, The Whole Duty of Man, According to the Law of Nature, 1.6.3; Pufendorf, On the Law of Nature and Nations,
3.1.1. 123 Locke, Second Treatise, 5.27. 124 Cf. Locke, Second Treatise, 2.6: ‘sent into the World by his order and about his business, [we] are his Property’. 125 Larry May, ‘Hobbes’s Contract Theory’, Journal of the History of Philosophy, XVIII (2) (1980), p. 205.
27
natural condition through appropriation of common goods. As a result, there are no uncontested
provisional rights to goods which individuals can agree to respect, by laying down their right to
them in the original covenant. Only the Creation Argument can explicate the genesis of rights in
things.
Regardless of which explanation of the conventional origin of propriety in one’s ‘own life,
& limbs’ we prefer, Hobbes rejects natural self-ownership. Moreover, contrary to what
Macpherson and Zarka maintain, self-ownership plays no role in his theory of property. Hobbes
acknowledged no natural right to the fruits of one’s labour; any such right is established by
distributive civil law.
Macpherson has been criticized for misidentifying the problems seventeenth-century
natural right theorists were addressing. They were concerned with the right of resistance, critics
claim, not with the right to the products of one’s labour; with politics, not with economy.126 My
criticism is of a different order. I have argued that natural self-ownership is positively inconsistent
with Hobbes’s thoroughly conventionalist theory of property. It is ruled out by various
interlocking doctrines, including the right to all things, the absence of justice and injustice in the
state of nature, the definition of justice as the performance of covenants, and Hobbes’s peculiar
understanding of distributive justice as the creation of private property rights by sovereign fiat.
CONCLUSION
Macpherson regards Hobbes’s writings on justice as strong evidence for his bourgeois theory of
property and self-ownership; critics and fellow-travellers alike agree. This paper challenged this
view by examining the way in which property depends on the State. The explanations Hobbes
advances in Elements and De Cive (the Security and the Precision Argument) are somewhat supportive
of Macpherson’s reading. Both arguments rely on commutative justice (the justice of
contractors). They assign a limited role to the State and allow for provisional pre-political claims
to property. Yet Leviathan discarded these two arguments in favour of the Creation Argument. That
explanation of the State-dependency of property, premised on distributive justice, fits ill with
Macpherson’s thesis. For Hobbes, the task of the State goes beyond enforcing private contracts
and arbitrating disputes – it arbitrarily creates private property and other civil rights. What one
deserves is not determined by brute market forces, but by civil law. To further complicate
126 Tully, ‘Possessive Individualism Thesis’, pp. 25-31.
28
Macpherson’s reading, Hobbes rejects a basic assumption of possessive individualism: natural
self-ownership.
The analysis I provided of the conceptual connections Hobbes perceived between justice,
law and property rights is not just of interest to students curious about the plausibility of
Macpherson’s thesis. Further contributions of the paper are three. First, I systematically traced
Hobbes’s developing insights concerning law, property, and distributive justice. I argued that
Hobbes’s most radical State-based theory of property was not defended consistently before
Leviathan. In that text Hobbes first reinterpreted the Roman law definition of justice as the duty
or virtue of sovereigns to institute private property rights. Second, I drew attention to a
distinctive and foundational premise of Hobbes’s practical philosophy: his rejection of a natural
suum. Considerations of space prevented me from further elaborating on this point. I suspect,
however, that this denial underlies the most salient differences between Hobbes’s philosophy of
right and that of Grotius and other early modern natural lawyers. Third, the paper elucidated
theoretical connections between several apparently disparate Hobbesian doctrines: including the
right to all things, distributive laws, his redefinitions of distributive justice and merit, his denial of
natural self-ownership, propriety in its broad sense, and justice more generally. The highlighted
interconnections hopefully convince readers that Hobbes had a full-blown theory of property
that deserves further study.