Filozofski vestnik V o l u m e / L e t n i k XXIV • Number/Številka 2 • 2003 • 267-289 
BEHEMOTH A N D H O B B E S ' S "SCIENCE O F JUST 
AND UNJUST 
PATRICIA SPRINGBORG 
A. Why may not men be taught their duty, that is, the science of just and 
unjust, as divers other sciences have been taught, from true principles, 
and evident demonstration; and much more easily than any of those prea-
chers and democratical gentlemen could teach rebellion and treason?1 
Introduction 
This essay advances the following set of arguments - although not necessari-
ly in this order. First that we must take seriously Hobbes's claim in Behemoth 
that "the science of just and unjust" is a demonstrable science, accessible to 
those of even the meanest capacity. Second that Leviathan is the work in 
which this science, intended as a serious project in civic education, is set out. 
Third, that Hobbes is prepared to accept, like Plato and Aristotle, "giving to 
each his own," as a preliminary definition of justice, from which however, he 
draws some very un-Aristotelian conclusions. Fourth, that although in Hob-
bes's theory "just and unjust" are equivalent to "lawful and unlawful," this is far 
from being a simple statement of legal positivism, but rather the conclusion 
of a practical syllogism. The first term of this syllogism is that jus, or right, is 
the foundation ofjustice; the second term is thatjustice only obtains between 
men in the state of society; and the third term, or conclusion, is that, because 
justice can only obtain where jus or right, has been converted into lex, or law, 
justice is therefore synonymous with lawful, injustice with unlawful. Fifth, 
that the impediments to this demonstrable science ofjustice being univer-
1 Behemoth, or The Long Parliament, ed. Ferdinand Tonnies (London, 1889, facsimile ed., 
ed. Stephen Holmes, Chicago: University o f Chicago, 1990), p. 39. All citations are to Be-
hemoth are to the Tonnies ed. I wish to gratefully acknowledge the facilities and support 
extended to m e during my fellowship, 2002-3, at the Swedish Institute for Advanced 
Study in the Social Sciences, Uppsala, when this was written. 
2 6 7 
PATRICIA SPRINGBORG 
sally accepted, on Hobbes's account, are twofold, explained in terms of reli-
gion and the role of preachers and educators produced by the universities, 
on the one hand, and by the activity of "democratical gentlemen" and classi-
cal republicans dominating parliament, on the other. Sixth, that Hobbes's ac-
count of the transition from jus to lex, specified in terms of a transition from 
the state of nature to that of civil society, although Epicurean in origin, is 
much closer to a conventional civil law position than is usually noted. 
Behemoth may be seen as an extended disquisition on "the science of just 
and unjust," inserted into a history of the Long Parliament and the conduct 
of the English Civil War from 1640 to 1660. Indeed, so literally does Hobbes 
intend his claim that the English civil war is to be read as the miscarriage of 
justice as a science, and one which requires the reform of the universities, 
hitherto so delinquent in their duty to teach this science, that he takes, as he 
admits, a long digression from the history of the civil war to set it out."' In the 
Dedication to Henry Bennet, Lord Arlington, Hobbes had already presented 
"his four short dialogues concerning the civil war" in the following terms: 
"the first contains the seed of it, certain opinions in divinity and politics. The 
second hath the growth of it in declarations, remonstrances, and other writ-
ings between the King and Parliament published. The two last are a very 
short epitome of the war itself, drawn out of Mr. Heath's chronicle."3 
Behemoth, like the other late works that it most closely resembles,4 the Di-
alogue between a Philosopher and a Student of the Common Laius of England, 5 the 
Historia Ecclesiastical and the 1668 Appendix to the Latin Leviathan,7 is cast 
in dialogue form. The dialogue, like the invective, from which it was some-
2 Ibid., pp. 40-59. The interlocutors, having discussed at great length the rise of the 
universities, the student concludes (p. 59): "I am therefore your opinion, both that men 
may be brought to a love of obedience by preachers and gentlemen that imbibe good 
principles in their youth at the Universities and also that we never shall have a lasting 
peace, till the Universities themselves be in such manner, as you have said reformed." 
3 Ibid., p. iv. 
4 Ibid., Hobbes's Dialogue of the Civil Wars of England, was completed around 1668, and 
is therefore contemporaneous with the final form o f the Latin Leviathan. 
5 Drafted in 1666, published in 1681. 
6 Aubrey reports on the progress of the poem from 1659 and we have a record of its 
completion in the account books at Chatsworth in 1671, but it was first published in 1688. 
See the forthcoming edition by Patricia Springborg and Patricia Stablein (Oxford: Claren-
don edition of Hobbes's Complete Works). 
7 For translations of the 1668 Latin Appendix, see Thomas Hobbes, Leviathan, with se-
lected variants from the Latin edition of 1668, ed, with Introduction and Notes by Edwin 
Curley (Indiannapolis: Hackett, 1994), pp. 498-548; as well as George Wright's excellent 
translation with notes, "Thomas Hobbes: 1668 Appendix to Leviathan," Interj/retation 18, 
no. 3 (1991): 324-413. 
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B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
times indistinguishable, was a favoured literary form of the Renaissance. In 
all three cases the dialogue is conducted between two interlocutors A and B. 
If, as Edmund Curley cautions in the case of the 1668 Appendix, we cannot 
assign either A or B as a personal spokesman for Hobbes, who is referred to 
by both in the third person, this is not the case with Behemoth, where A is a 
teacher who seems clearly to represent Hobbes, and B is an unidentified 
pupil.8 These three works taken together not only contextualize Leviathan, 
cast in the classical form of a philosophical treatise, but they also cast impor-
tant light on its theses. Moving between genres, as he does in the late dia-
logues, Hobbes buttresses the claims of Leviathan with the legal case method 
of the Dialogue concerning the Common Law, the ecclesiology of the Historia Ec-
clesiastica, presented in Latin hexameters, and the historiography of Behemoth. 
In all three, as we shall see, Hobbes is concerned with heresy as false 
opinion, with sectarianism as a form of sedition, and with democracy as the 
pretension to power that carries these seeds of destruction with it. Heresy was 
on Hobbes's mind. His desire to vindicate himself against the charge of 
heresy in general, and charges that the parliament was prepared to lay 
against him in 1666—7 with respect to Leviathan, specifically, had precipitated 
a flood of works in those years, abating around 1670. These works, all of 
which address heresy more or less directly, comprise his Historia Ecclesiastica 
(written between 1659 and 1674, but published only in 1688); A Dialogue be-
tween a Philosopher and a Student of the Common Laws of England (drafted in 
1666, but published only in 1681); Hobbes's Answer to Bishop Bramhall's The 
Catching of Leviathan, published together with his An Historical Narration Con-
cerning Heresy (1668); the Latin Leviathan, including a new Appendix (1668); 
and other short manuscripts on heresy (1668). To this series of works, Behe-
moth (completed in 1670, but published only in 1679) belongs; and it is here 
that Hobbes explicitly stakes his claim to authorship of a "science of just and 
unjust" as the lesson to be learned from civil war and the means to alleviate 
its causes. 
As in the case of Leviathan, Behemoth is the Hebrew name for beasts from 
the book of Job and, even if not in this case Hobbes's chosen title,9 it plays 
8 As we can gather, for instance, by A's reference to his Hobbes's patron, William 
Cavendish, as "My Lord of Newcastle," see Behemoth, p. 122. In the case of the Historia Ec-
clesiastica, the distribution of the dialogue, which is in any case uncertain on textual 
grounds, also cannot be assigned with confidence. 
9 Behemoth was not the name Hobbes's gave it, and was not the title of the first three un-
authorized 1679 editions printed abroad. In August 1679 Hobbes complained to Aubrey 
"I have been told that my booke of the Civill Warr is come abroad, and I am sorry for it, 
especially because I could not get his majestye to license it, not because it is ill printed or 
has a foolish title set to it, for I believe that any ingenious man may understand the 
2 6 9 
PATRICIA SPRINGBORG 
an important role in his lexicon.10 Behemoth is, however, plural for Behema, de-
fined in Cooper's Thesaurus of 1565 as "the dyvell, and signifieth a beaste."11 
The plural is significant, for Behemoth to Hobbes represents the many head-
ed hydra of democracy, or government by opinion. The opinions that are so 
dangerous involve the conjunction of philosophy and divinity, which in turn 
breed sects, and the Greek word for sect is haeresis, the same as heresy. So, for 
instance, when, in the 1668 Appendix to the Latin Leviathan, A asks B, "What 
is heresy?", B answers, "The term is Greek, meaning the doctrine of any sect." 
And when A asks, "What is a sect?", B answers, "A sect is a number of men 
who follow the same master in the sciences, one whom they have chosen for 
themselves, at their own discretion." "Heresy is a word which, when it is used 
without passion, signifies a private opinion," the teacher claims in Behemoth. 
"So the different sects of the old philosophers, Academicians, Peripatetics, 
Epicureans, Stoics, etc. were called heresies."12 This, it turns out, is the nub 
or it and, for Hobbes, the greatest failing of sectarianism, like democracy, is 
the fact that it represents choice by those who have no authority to choose. 
Beginnings are significant and Hobbes chooses for Behemoth a Machi-
avellian opener: 
A. If in time, as in place, there were degrees of high and low, I verily be-
lieve that the highest time would be that which passed between the 
years 1640 and 1660. For he that thence, as from the Devil's Mountain, 
should have looked upon the world and observed the actions of men, 
especially in England, might have had a prospect of all kinds of injus-
wickednesse of that time, notwithstanding the errors of the presse." See Hobbes, Correspon-
dence, vol. 2, ed. Noel Malcolm, p. 772. Malcolm notes, p. 773, note 4, that Hobbes's com-
plaint about the title could not refer to Behemoth, which was not yet used, but might rather 
refer to the famous lines from Lucretius, De Rerum Natura, 83, 101, which Voltaire believed 
would last as long as history, and which the editors of the pirated editions had appended: 
"Religio pepercit Scelerosa atque impia Facta," and "Tantum Religio potuit Suadere Mal-
orum" ("religion was the mother of wicked and impious deeds," and "Such was the evil 
which religion led men to commit." See Malcolm p. 773, note 4). However, in the 1688 
printed edition of Hobbes's Historia Ecclesiastica, more or less completed, it appears, at the 
same time as Behemoth, both the names Leviathan and Behemoth appear in conjunction, al-
though not in the Grund ms, which the copyist tells us was made from the copy in "My 
Lord Vaughan's library," probably the presentation copy. They appear as an interpolation 
in the 1668 printed edition the Harleian 1844 Ms, corrected to the 1688 printed edition. 
10 See Hobbes's Historia Ecclesiastica (1688 printed ed., line 1229), where with reference 
to the machinations of the Pope he comments: "Leviathan, like Behemoth, had again 
taken the hook in the nose; both the king and the people were slaves." 
11 See Cooper, Thomas and Sir Thomas Elyot, Thesaurus Linguae Romanae & Britannicae 
(London 1565). 
12 Behemoth, pp. 8-9 . 
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B E H E M O T H AND I-IOBBES'S "SCIENCE OF JUST AND UNJUST" 
dee, and of all kinds of folly, that the world could afford, and how they 
were produced by their dams hypocrisy and self-conceit, whereof the 
one is double iniquity, and the other double folly.13 
Hobbes's perspective is strikingly reminiscent of Machiavelli who begins 
the Prince 1.2 by offering a short defense of why he, an ordinary citizen, 
should know more than rulers about the art of ruling, in terms of the analo-
gy of a person standing on a mountain, as best positioned to survey the land-
scape below, compared with a person standing below, as best positioned to 
survey the mountain. From which he concludes, "to comprehend fully the 
nature of people, one must be a prince, and to comprehend fully the nature 
of princes one must be an ordinary citizen." 
The pupil, B, of Behemoth, responds in the same idiom: 14 
B. I should be glad to behold that prospect. You that have lived in that 
time and in that part of your age, wherein men used to see best into 
good and evil, I pray you to set me (that could not then see so well) up-
on the same mountain, by the relation of the actions you then saw, and 
of their causes, pretensions, justice, order, artifice and event. 
Machiavellian topoi on the role of good men, good arms and good laws, 
as well as the problem of Christianity, as a religion of salvation, compared 
with the civil religions of antiquity, dominate Behemoth}5 Hobbes's historiog-
raphy of the English civil war is less concerned with the detail, which in exile 
in France he was not present to observe, than with these principles, as he 
notes, acknowledging, "I shall only make use of such a thread, as is necessary 
13 Ibid., p. 1. See Springborg, "Review Article: The View from the 'Divell's Mountain'; 
Review of Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes, " History of Politi-
cal Thought, 17, 4 (Winter 1996), 615-22. 
14 Behemoth, p. 1. 
15 See Patricia Springborg, "Hobbes on Civil Religion," Proceedings of the Conference 
on Pluralismo e religione civile, Universita del Piemonte Orientale, Vercelli, Italy, May 24-25, 
2001, ed. Gianni Paganini and Edoardo Tortarolo (Milano, Bruno Mondadori, 2003, 
pp. 61-98) . Hobbes's indebtedness to Machiavelli has often been underestimated. 
Leviathan chapter 2, "Of Man," for instance, includes an allusion to the centaur, com-
pounded of horse and man, which suggests Machiavelli's trope of the centaur as reflect-
ing the duality of human nature in the Prince chapter 18. It is a trope which Machiavelli 
goes on to rework in the famous metaphor of the wolf and the fox, a notion famously re-
described by Hobbes himself in the concept homo homini lupus. Nor could Hobbes have 
been unaware of his patron, William Cavendish, Duke of Newcastle's famous princely mir-
ror, his Advice to Charles II, which so closely follows Machiavelli's Prince. (See Ideology and 
Politics on the Eve of Restoration: Newcastle's Advice to Charles II, transcribed by Thomas P. 
Slaughter. Philadelphia: American Philosophical Society, 1984.) 
2 7 1 
PATRICIA SPRINGBORG 
for the filling up of such knavery, and folly also, as I shall observe in their sev-
eral actions," "in what is intended only the story of their injustice, impudence 
and hypocrisy."16 
On the subject of good men and good laws, he considers first how it was 
that in such short span of time the people were seduced from support of 
their king, "a man that wanted no virtue... in the well governing of his sub-
jects," and how "the people were corrupted generally, and disobedient peo-
ple esteemed the best patriots."17 He gives a preliminary catalogue of "the 
seducers" and then goes on to consider the role of arms, and control of the 
military, as well as the specific laws in terms of which the corruption of sov-
ereignty was made possible. "The seducers were of divers sorts," the teacher 
claims, and proceeds to give a catalogue that includes ministers, first Papists, 
then Presbyterians and third, Independents, Fifth-monarchy-men, Quakers 
and Adamites, all of whom claimed an independent, and in some cases a 
democratic, authority.18 Fourthly came the parliamentarians characterized by 
the educated gentry, classical republicans if not democrats, citing Greek and 
Roman precedents for "popular government... extolled by the glorious 
name of liberty, and monarchy disgraced by tyranny."19 Fifth were "the city of 
London and other great towns of trade, having in admiration the great pros-
perity of the Low Countries after they had revolted from their monarch, the 
King of Spain," and who thought that they likewise might profit from a 
change of government.20 Sixth were those who thought they could profit 
from war; and seventh and last, "the people in general... so ignorant of their 
duty... or what necessity there was of King or Commonwealth... they had no 
rule of equity, but precedents and custom... whence crept in the pretences 
of that Long Parliament, for a democracy."21 
Parliament is characterized variously, as in the power of "democratical 
gentlemen... whose design of changing the government from monarchical 
to popular ... they called liberty,"22 as "attempting the change of government 
1(5 Behemoth, pp. 119-20. For the details, he refers his pupil to "the history written at 
large," presumably Clarendon's History of the Rebellion. See, Edward Hyde, First Earl of 
Clarendon, The History of the Rebellion and Civil Wars in England, begun in the Year 1641. With 
the precedent Passages, and Actions, that contributed thereunto, and the happy end, and Conclusion 
thereof by the King's blessed Restoration, and Return upon the 29th of May, in the Year 1660 (Ox-
ford, 1660). 
17 Behemoth, p. 2. 
18 ibid., pp. 2-3. 
19 Ibid., p. 3. 
20 Ibid., pp. 3-4. 
21 Ibid., pp. 4-5. 
22 Ibid., p. 26. 
2 7 2 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
from monarchical to democratical,"23 as ruled by "Presbyterians and democ-
raticals,"24 and as "animated by the democratical and Presbyterian English."25 
It is the thread of the triple threats of heresy, sectarianism and democracy on 
which the argument is chiefly strung, leading the student to conclude: 
I see by this, it is easier to gull the multitude, than any one man amongst 
them. For what one man, that has not his naturaljudgment depraved by 
accident, could be so easily cozened in a matter that concerns his purse, 
had he not been passionately carried away by the rest to change of gov-
ernment, or rather to a liberty of every one to govern himself?26 
The pupil summarizes the lessons Hobbes drew from Thucydides, of 
whom he claimed in his Autobiography. "There's none that pleas'd me like 
Thucydides. / H e says Democracy's a foolish thing,/ Than a republic wiser is 
one king."27 It is in this context that the teacher in Behemoth is prompted to ask: 
A. Why may not men be taught their duty, that is, the science of just and 
unjust, as divers other sciences have been taught, from true principles, 
and evident demonstration; and much more easily than any of those 
preachers and democratical gentlemen could teach rebellion and trea-
son?28 
The student is skeptical: 
B. But who can teach what none have learned? Or if any many have 
been so singular, as to have studied the science of justice and equity; 
how can he teach it safely, when it is against the interest of those that 
are in possession of the power to hurt him?29 
And the teacher replies: 
A. The rules of just and unjust sufficiently demonstrated, and from 
principles evident to the meanest capacity, have not been wanting; and 
notwithstanding the obscurity of their author, have shined, not only in 
this, but also in foreign countries, to men of good education.30 
23 Ibid., p. 27. 
24 Ibid., p. 30. 
25 Ibid., p. 31. 
26 Ibid., p. 38. 
27 Hobbes's Verse Autobiography, lines 84-86, reproduced in Leviathan, Curley ed., p. lvi. 
28 Behemoth, p. 39. 
29 Ibid., p. 39. 
30 Ibid., p. 39. 
275 
PATRICIA SPRINGBORG 
Hobbes, as interlocutor A, undoubtedly refers to his own Leviathan, and 
its continental reception. Moreover, he presages the important role of edu-
cation in inculcating the "science of the just and the unjust," and the delin-
quency of the universities which, he claims, have failed in the task: 
And, therefore, the light of that doctrine has been hitherto covered and 
kept under here by a cloud of adversaries, which no private man's rep-
utation can break through, without the authority of the Universities. 
But out of the Universities, came all those preachers that taught the 
contrary. The Universities have been to this nation, as the wooden 
horse was to the Trojans.31 
It is as a project for the universities, or a theory of civic education, that 
Hobbes presents his "science oi just and unjust." Leviathan, as Hobbes made 
clear, was intended as a text for university instruction, and there, as in the 
Historia Ecclesiastica, he gives substantially the same account of the develop-
ment of the universities as initially papal foundations intended for religious 
indoctrination which might, however, be reformed to serve the state.32 As it 
stands, however, when men had "grown weary at last of the insolence of the 
priests," they turned instead to "the democratical principles of Aristotle and 
Cicero, and from the love of their eloquence fell in love with their politics, 
and that more and more, until it grew into the rebellion we now talk of."33 
Hobbes implies that university reform is now imperative, and it is not diffi-
cult to see the entire project of Leviathan and Behemoth as an exercise in civic 
education. 
Hobbes is careful to distinguish the republican Aristotle, ushered in by 
the Renaissance, from the Aristotelianism of the Schools. And while it is 
against the Aristotelianism of the Schoolmen that he directs most of his ire, 
the republican Aristotle, famous in the Politics for the definition of citizen-
ship as the right to rule and be ruled, is a specific target in Behemoth: 
The virtue of the subject is comprehended wholly in obedience to the 
laws of the commonwealth. To obey the laws, is justice and equity, which 
is the law of nature, and, consequently, is civil law in all nations of the 
world; and nothing is injustice or iniquity otherwise than it is against 
31 Ibid., p. 40. 
32 The Historia Ecclesiastica, lines 1847-82, closely parallels the account in Behemoth, pp. 
40-41, o f the rise of the universities, beginning with Paris and followed by Oxford, as pa-
pal instruments and seats of theology. 
33 Behemoth, p. 43. 
2 7 4 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
the law. Likewise, to obey the laws, is the prudence of a subject; for with-
out such obedience the commonwealth (which is every subject's safety 
and protection) cannot subsist.34 
Hobbes refers in this context to Aristotle's doctrine of the mean, which 
he derides as the rule of mediocrity: "In sum all actions and habits are to be 
esteemed good or evil by their causes and usefulness in reference to the com-
monwealth, and not by their mediocrity."35 And he seems to lay the fall of the 
monarchy to the door of the theory of mixed government, or "mixarchy," the 
classical republican doctrine of government balanced between monarchical, 
aristocratic and democratic principles, to be found first in Aristotle, that cap-
tivated not only the Civil War parliamentarians but also the King's coun-
cilors.36 A doctrine shared by Clarendon and royalists, as well as by republi-
cans, the theory of mixed government called for divided sovereignty and in-
effective government, in Hobbes's view, a topic to which he many times 
returns in the course of Behemoth. 
The possibility of a "science of just and unjust" 
Two commonplaces about Hobbes's political theory have obscured the 
significance of Hobbes's important claim in Behemoth that "the science of just 
and unjust" is a demonstrable science, and that the principles of this science 
are "evident to the meanest capacity." The first concerns his nominalism and 
the second his legal positivism. Hobbes is deemed a nominalist by virtue of 
his subscription to the principle that right and wrong, good and bad, just and 
unjust do not exist in nature but are judgments of men. And he is deemed a 
34 Ibid., p. 44. 
35 Ibid., p. 45. 
3l> The official theory o f the "balanced" or "mixed" constitution of "three estates," king, 
lords and commons, was set out in the Answer to the XIX Propositions, issued in June 1642 
on behalf o f Charles I and against his parliamentary opponents. Recent scholars have de-
bated to what degree this is an expression of classical republican theory. At the time the 
statement was read less as empowering king or commons than as empowering bishops, 
the lords spiritual, and counterpart to the lords temporal, of the second estate, under at-
tack in the parliament o f 1640-41. Clarendon supported the independent authority of the 
Anglican church and was the principal advocate of "mixarchy." He was the unnamed tar-
get o f Hobbes ' attacks on the doctrine, and its role in the fall of Charles I, in Behemoth. 
See Michael Mendle, Dangerous Positions: Mixed Government, the Estates of the Realm, and the 
Answer to the XIX Propositions (Tuscaloosa, Al.: University of Alabama Press, 1985); and the 
review o f Mendle by Richard Tuck, Journal of Modern History 59, no. 3 (1987): pp. 570-72. 
2 7 5 
PATRICIA SPRINGBORG 
legal positivist by subscribing to the view that "justice is whatever the law says 
it is" and an "unjust law" is simply an oxymoron.37 
But such a simple understanding of Hobbes's position defies his notion 
of "the science of just and unjust," variously expressed as the "true science of 
equity and justice" (EW 6, 251), the "true principles of duty" (EW 6, 253), the 
"causes and grounds of duty" (EW 6, 363), the "science of the laws of nature" 
(EW 3, 146), the "science of virtue and vice" (EW 3, 146), and the "true doc-
trine of the laws of nature" (EW 3, 166).38 It is noteworthy that among mod-
ern accounts of Hobbes's science of justice and its sources, one of the most 
succinct and compelling is that of Reinhart Koselleck, student of Carl 
Schmitt, legal theorist of the Third Reich whose Leviathan39 heralded a new 
and disturbing Realpolitik in the principles of Freund und Feind, an extrapola-
tion from Hobbes's characteristic use of the old aphorism homo homini lu-
pus.w Emphasizing the Civil War context for Hobbes's political theory, Kosel-
leck notes that Hobbes, in his search for a fundament on which to ground 
peace and security, rejects "the laws and customs of one's country," as a start-
ing point, on which Descartes, by contrast, had insisted. Hobbes devoted 
chapter 11 of Leviathan, "Of the Difference of Manners," to a polemic against 
"Custome and Example," or jus gentium, as adequate to such a task. As early 
as De Homine (10.5), Hobbes had insisted that politics and ethics, or the sci-
ence of just and unjust, equality and inequality, is a science demonstrable a 
priori ("politica et ethica, id est scientiajusti et injusti, aequi et iniqui, demon-
strari a priori potest"), precisely because it is we who make cases of justice, 
just as to be sure we make the laws and pacts themselves ("justitiae causas, 
nimirum leges et pacta ipsi fecimus").41 If civil war is due initially to the fail-
ure of philosophers and theologians to put truth above sectarianism ("non 
partium, sed pacis studio"), as Hobbes diagnoses in Behemoth, it is only in the 
37 Among legal theorists, the Viennese Hans Kelsen is most well known for the "hard 
positivist" position that positive law needs no further justification: there are no universal 
facts about morality, or objective measures o f what the law ought to be like. The origins 
of positive law are explained either in terms of command theory (Jeremy Bentham.John 
Austin), or social convention theory (Kelsen, H.L.A. Hart). The latter see Hobbes as a le-
gal positivist in this sense. 
38 For the purposes of easy comparison I list the references according to Molesworth. 
39 Carl Schmitt, The Leviathan in The State Theory of Thomas Hobbes (1938), trans. George 
Schwab and Erna Hilfstein. (London, 1996). 
40 See the seminal piece by François Tricaud, ' " H o m o homini Deus,' ' H o m o homini Lu-
pus': Recherche des sources des deux formules de Hobbes," in Hobbes-Forschungen, ed. R. 
Koselleck, and R. Schnur (Berlin, 1969), pp. 61-70. 
41 See Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogensis of Modern 
Society (Cambridge, Mass.: MIT Press, 1988 ed.), chapter 2, "Hobbesian Rationality and 
the Origins of Enlightenment," pp. 23-24, and notes. 
2 7 6 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
course of the experience of war that sectarian interests, of individuals, parties 
and churches are progressively unmasked to disclose desire and fear ("ap-
petitus et fuga") as the ultimate causes of war and peace.42 
Indeed, one may argue, the monsters from the book of Job, Leviathan 
and Behemoth, make their appearance in the titles of Hobbes's works precise-
ly to signal two things: first that right and wrong, good and bad, just and un-
just are judgments that only men can make; and second that Leviathan, a hu-
man artifice constructed on the basis of fear, is indeed a mortal god, and Be-
hemoth, civil war, is the story of its mortality,43 If the main support for the state 
is the power of reason that brings it into being, the main threat to the state 
is religion, also born out of fear. It is primarily due to religion, in the form of 
priestcraft, and its specific bearer, the universities, he claims, that the science 
of justice has been subverted and the realm imperiled. Hobbes's position on 
reason as the power to make the state and religion as the power to unmake 
it, is classically Epicurean and does not involve the simple nominalism or le-
gal positivism that have been ascribed to him. Understanding Hobbes as a lat-
ter day Epicurean allows us to take seriously his "science of just and unjust." 
It gives us important hints about the provenance of some of the characteris-
tic features of his theory, notions of the state of nature, contract, the role of 
fear, religion as a prophylactic, and right reason as a route to peace. And it 
allows us to see the ingenuity with which Hobbes advances "the science of just 
and unjust" along Epicurean lines. 
There was a long tradition of treating justice as conventional, which in-
cluded not only the sceptics but also the dogmatists, and even Aristotle had 
remarked that justice was a matter of law and custom and not by nature. But 
Epicurus managed successfully to combine the view of justice as convention-
al with emphasis on the therapeutic value of philosophy, which presupposed 
an objective measure o f human betterment, or the Good. The notion that 
justice was conventional, arising from pacts between men, is explicitly elabo-
rated in the important Sentences (Ratae Sententiae\ XXXI to XL of Epicurus' 
Principal Doctrines (Kuriai Doxai) ,44 So i iSXXXI states: "the justice which aris-
es from nature is a pledge of mutual advantage to restrain men from harm-
ing one another and save them from being harmed"; RS XXXII states: "For 
all living things which have not been able to make compacts not to harm one 
another or be harmed, nothing ever is either just or unjust; and likewise too 
42 Koselleck, op. cit., p. 24, citing Leviathan, book 1, ch. 6. 
43 See Job 30:29, verses 40 and 41, 42:6, etc.; see also Patricia Springborg, »Hobbes's 
Biblical Beasts: Leviathan and Behemoth," Political Theory 23, no. 2 (1995): pp. 353-75. 
44 For Ratae Sententiae XXXI-III , I have used the English translation of Cyril Bailey in 
Epicurus, the Extant Remains (Oxford: Clarendon Press, 1926), p. 103. 
2 7 7 
PATRICIA SPRINGBORG 
for all tribes of men which have been unable or unwilling to make compacts 
not to harm or be harmed"; and RS XXXIII states: "Justice never is anything 
in itself, but in the dealings of men with one another in any place whatever 
and at any time it is a kind of compact not to harm or be harmed." 
Justice may be conventional, but Epicurus reserves for harm and benefit a 
privileged status. If justice concerns benefit and injustice concerns harm, nev-
ertheless justice "arises from nature," even though if it is always mediated 
through compacts and is not, therefore, available to men in the natural state. 
This is precisely the structure of Hobbes's own theory. He may seem to repeat 
arguments that suggest the appellations good, bad, just and unjust are arbi-
trarily chosen terms, and that there is no measure by which to determine the 
difference in meaning between them. So, for instance, in the Historia Ecclesias-
ticahe repeats an argument to be found in Behemoth in a more developed form: 
The crowd has no known measure of good and evil, and regard justice 
and injustice as mere words. 
Everyone calls "just" whatever he can get away with; and whatever he 
suffers unwillingly, he considers a crime against God.45 
What appears at first sight as a cynical acknowledgement of the conven-
tional nature of justice turns out, upon analysis, to be a protest against the 
general failure to understand "the measure of good and evil," of justice and 
injustice. To what cause is this general failure due? It comes about through 
the conjunction of democracy and sectarianism. Only at the behest of dem-
agogues and false prophets do men fail to calculate their interest by ratio, the 
measure of harm and benefit. So, in Behemoth, where as so often he describes 
civil war as a "world turned upside down" in remarkably Thucydidean terms, 
he claims: "it is easier to gull the multitude, than any one man amongst 
them."46 It is precisely due to preachers and demagogues that men can be se-
duced so easily from their interests, and even their pecuniary interests. 
"Good is to everything, that which hath active power to attract it locally, 
Malum, therefore, to everthing is that which hath active power to repel it," 
Hobbes declared as early as the Short Tract (c. 1630).47 He had refined the 
45 Hobbes, Historia Ecctesiastica, lines 2155-58. Translations of Hobbes's Historia Ecclesiasti-
ca (1688) are from the forthcoming edition by Patricia Springborg and Patricia Stablein. 
48 Behemoth, p. 38. 
47 See, Ferdinand Tonnies, "A Short Tract on First Principles," in Tonnies, ed., The Ele-
ments of Law, including "A Short Tract on First Principles," (New York, 1969), pp. 208-9. 
For the debate about Hobbes's authorship o f the "Short Tract," see the late Karl Schuh-
mann's seminal piece, "Le Short Tract, premieoeuvre philosophique de Hobbes," Hobbes 
Studies 8 (1995): pp. 3-36. 
2 7 8 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF JUST AND UNJUST" 
thesis in De Cive (1642) and the Philosophical Rudiments (1651), claiming in 
the latter, "For every man is desirous of what is good for him and shuns what 
is evil, but chiefly the chiefest of natural evils, which is death; and this he does 
by a certain natural impulsion of nature, no less than that whereby a stone 
moves downward."48 The thesis that good and evil are names for the attrac-
tion of pleasure and the avoidance of pain, natural impulses activated by hu-
man judgment, had been formulated by Lorenzo Valla and Juan Luis Vives, 
probable sources for Hobbes.49 
Therefore we say that such-and-such things exist or do not exist, or are 
these and those, of such or a different kind, we reckon on the basis of 
our belief, not of the things themselves. It is not they that constitute 
their measure for us, but our mind. For when we call things good, bad, 
useful, useless, we are not speaking according to things, but according 
to ourselves.50 
Views about the conventional nature of judgments of good and bad, use-
ful and useless, are to be found across the range of philosophical traditions, 
and are not peculiar to the Epicureans. The Sophist Protagoras had epito-
mized the view that the measure of truth was political, what men collectively 
decide (Tlieaet. 167c), although, like Democritus, he thought "a basis for the 
judgments of 'better' and 'worse' is to be found in the efficacy of 'art.'"51 But 
for Democritus, as Gregory Vlastos points out, "man is the measure" in a very 
different sense: "His physical concept of the soul defines a unitary human na-
ture which affords a basis for universally valid judgments".52 "Man is the 
48 Hobbes, EW 2, p. 8. 
I!l For Hobbes and Valla, see Gianni Paganini, "Hobbes, Valla e i problemi filosofici del-
la teologia umanistica: la riforma 'dilettica' della Trinita," in L. Simonutti, ed., Dal neces-
sario at possibile: Determinismo e liberta net pensiero anglo-olandese del XVII secolo (Milan: Fran-
co Angeli, 2001), pp. 11-45; and Paganini, "Thomas Hobbes e Lorenzo Valla: Critica 
umansitica e filosofia moderna," Rinscimento, Rivista dell' Instituto Nazionale di Studi sul Ri-
nascimento, 2nd series, 39 (1999): pp. 515-68. 
50 See Juan Luis Vives, De prima philosophia, in his Opera, 2 vols, (Basle, 1555), vol. 1, PP-
532-33, trans. Richard Waswo, Language and Meaning in the Renaissance (Princeton, Prince-
ton University Press, 1987), pp. 128-29. For a more extensive discussion of Hobbes and 
Vives, see Patricia Springborg, "Hobbes and Epicurean Religion," in Der Garten und die 
Moderne: Epikureische Moral und Politik vom Humanismus bis zur Aujklarung, ed. Gianni Pa-
ganini and Edoardo Tortarolo (Stuttgart: Rommann-Holzboog Verlag, 2003 [forthcom-
ing])-
51 Gregory Vlastos, "Ethics and Physics in Democritus, I," The Philosophical Review 54 
(1945), p. 591. 
52 Gregory Vlastos, "Ethics and Physics in Democritus, II," The Philosophical Review 55 
(1946), p. 53. 
2 7 9 
PATRICIA SPRINGBORG 
measure," because the good for man is not given but must be created, 
through "art."53 In this way man can truly be said to make himself. 
The content of Hobbes's "science of justice": jus to lex 
The Latin term for "the measure," so central to Hobbes's science of jus-
tice, was ratio,54 whose more concrete meaning, a system of calculation, has 
been overtaken by the figurative meaning, reason. This system of calculation, 
reason, was in Hobbes's view, so straightforward that the simplest men could 
grasp it, and there are various remarks to this effect in Behemoth, as we have 
noted. His science of just and unjust, like Epicurus' Principal Doctrines (Kuri-
ai Doxai), take the form of Ratae Sententiae, renamed by Hobbes Laws of Na-
ture. It has been customary to compare these principles with Grotius's con-
cept of natural right (jus naturale), and for good reason. Hugo Grotius 
(1583-1645), jurist and politician, was among the first early modern thinkers 
to derive particular moral axioms from general principles of reason in this 
way. So, for instance, Hobbes's definition of jus naturale as "the liberty each 
man hath to use his own power, as he will himself, for the preservation of his 
own nature," appears to rephrase Grotius, who declared: "Natural right (jus 
naturale) is a dictate of right reason indicating that some act is either moral-
ly necessary or morally shameful, because of its agreement or disagreement 
with man's nature as a rational and social being."55 In this respect Hobbes 
belongs to the long history of the reception of the Roman law concept of jus, 
mediated by Canon law and the efforts of Glossators and Postglossators, to 
produce elaborate legal theory, differentiated in terms of jus naturale and jus 
gentium, as the basis for justice in "right" (jus), on the one hand, and its ex-
pression in the positive law of nations (lex), on the other. 56 
While this is indeed the legacy to which Hobbes's science of just and un-
63 Ibid., p. 64. 
54 For definitions of ratio see Lewis & Short's standard Latin Dictionary and Cooper's The-
saurus Linguae Romanae & Britannicae (London 1565): 
ratio -ionis (f.), from reor and ratus (1) reckonning; account, calculation; list, register; af-
fair, business; (2) relation; respect, consideration; procedure, method, system, way, kind; 
(3) reason; reasoning, thought; cause, motive, science, knowledge, philosophy. (Cooper) 
"reason: counsayle: purpose: care: respecte: consideration: regarde: cause: the mattier: 
the way: thefacion: the fourme: proportion: the trade: the feate: the meane. An accompte 
or reckenyng." 
Hobbes, Leviathan, ch. 14, §1, Curley ed., p. 79. Curley notes the parallel to Grotius, 
De jure belli ac pads 1.1.10.12. 
r,b For Roman Law concepts of jus and lex, see H.F. Jolowitz, A Historical Introduction to 
2 8 0 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF JUST AND UNJUST" 
just belongs, the peculiar character of his own particular doctrines and the 
important role of social contract, as the vehicle by means of which jus can be 
converted into lex, are best explained with reference to Epicurus' Ratae Sen-
tentiae XXXI to XXXIII that we have already mentioned. Indeed, it is Pierre 
Gassendi, Hobbes's important contemporary, with whom he was closely asso-
ciated in Paris, and who was at the time putting together his great Latin com-
pilation of Epicurean sources, whom Hobbes most likely followed in defining 
justice as conventional. A letter dated 10 October 1644 from Charles Caven-
dish, Hobbes's patron, to John Pell, the mathematician, reports: "Mr Hobbes 
writes Gassendes his philosophie is not yet printed but he hath reade it, and 
that it is big as Aristotele's philosophie, but much truer and excellent 
Latin."57 Cavendish refers to Gassendi's Life of Epicurus and Animadversions on 
the Ten Books of Diogenes Laertius published in 1649.58 The Hobbes-Gassendi di-
alogue was not all one way, however. Gassendi made an important concession 
to Hobbes by including his famous aphorism, "homo homini lupus" in his 
comment to Epicurus Ratae sententiae XXXIII late in the Animadversions, to il-
lustrate human aggressivity in the state of nature.59 It is perhaps not surpris-
ing then, that when in Leviathan Hobbes first introduces the concept of Jus-
tice, his argument should follow the same structure as Epicurus' PrincipalDoc-
the Study of Roman Law, 2nd edition (Cambridge: Cambridge University Press, 1967). For 
the development of modern natural rights theory out of Roman Lawj'tu naturale and jus 
gentium, see M.P. Gilmore, Argument for Roman Law in Political Thought, 1200-1600 (Cam-
bridge, Mass., Harvard University Press, 1961), and Richard Tuck, Natural Rights Theories, 
their Origin and Development (Cambridge, Cambridge University Press, 1981). 
57 Published in J. O. Halliwell, A Collection of Letters Illustrative of the Progress of Science in 
England from the Reign of Queen Elisabeth to that of Charles the Second (London, Historical So-
ciety of Science, 1941), p. 85, and cited in Gianni Paganini, "Hobbes, Gassendi e la psi-
cologia del meccanicismo," in Hobbes Oggi, Actes du Colloque de Milan (18-21 May, 1988), 
ed. Arrigo Pacchi (Milan, Franco Angeli, 1990), pp. 351-445, n. 12. 
58 Gassendi's "dialogue at a distance" with Hobbes has now been documented by Gain-
ni Paganini. See Gianni Paganini, "Hobbes, Gassendi et le De Cive," in Materia Actuosa: An-
tiquité, Age Classique, Lumières; Mélanges en 'honneur d'Olivier Bloch, ed. Miguel Benitez, 
Antony McKenna, Gianni Paganini, Jean Salem (Paris 2000), pp 183-206. In the ethical 
part of the Syntagma, dating to the years 1645 -46 , after the publication of the first edition 
of Hobbes's De Cive in 1642, and before the second, which Gassendi helped his friend 
Samuel Sorbière promote, Gassendi made transparent reference to Hobbes on freedom 
in the state of nature, as Paganini argues. For further elaboration on Hobbes's debt to the 
Epicureans see Arrigo Pacchi's seminal piece, "Hobbes e l'epicureismo," in Rivista Critica 
di Storia delta Filosofia 33 (1975): pp. 54-71. 
59 T h ^ w a s n o t e d by Paganini, "Hobbes, Gassendi e la psicologia del meccanicismo," p. 
438; a discovery made simultaneously by Olivier Bloch in his "Gassendi et la théorie poli-
tique de Hobbes," in Thomas Hobbes, Philosophie première, théorie de la science et politique, Actes 
du Colloque de Paris, ed. Yves Charles Zarka and Jean Bernhardt (Paris: Presses Univer-
sitaires de France, 1990,), p. 345. 
2 8 1 
PATRICIA SPRINGBORG 
trines, read through Gassendi's eyes,60 which we may restate in the form of a 
syllogism: (1) that justice, although arising from nature, is a pact of mutual 
restraint against harm and being harmed (RSXXXI); (2) that "for all tribes 
of men which have been unable or unwilling to make compacts not to harm 
or be harmed,... nothing ever is either just or unjust" (RS XXXII) ; and (3) 
that, therefore, "Justice never is anything in itself, but in the dealings of men 
with one another in any place whatever and at any time it is a kind of com-
pact not to harm or be harmed" (RS XXXIII). 
We can reconstruct the logic of Hobbes's theory of Justice in terms of a 
parallel syllogism:61 (1) "To obey the laws, is justice and equity, which is the 
law of nature, and, consequently, is civil law in all nations of the world; and 
nothing is injustice or iniquity otherwise than it is against the law." (2) In the 
state of nature, "this war of every man against every man, this also is conse-
quent: that nothing can be unjust. The notions of right and wrong, justice 
and injustice, have there no place."62 (3) Therefore: "Where there is no com-
mon power, there is no law; where no law, no injustice." 
The conclusion to Hobbes's syllogism may suggest a legal positivist posi-
tion: no jus without lex. But this is not the burden of his argument taken as a 
whole, which was rather to assert the classic position assumed by Aristotle as 
well as by Epicurus, that justice is relational, and not the virtue of the solitary 
man. Against Plato's theory of innate ideas, Hobbes concurs with Aristotle: 
"Justice and injustice are none of the faculties neither of the body, nor mind. 
If they were, they might be in a man that were alone in the world as well as 
his senses and passions. They are qualities that relate to men in society, not 
in solitude."63 But if justice is in practice always a question of what is lawful, 
it cannot be reduced to a legal positivist principle, nevertheless. In fact Hob-
bes is harsh in his criticism of those who would reduce jus to lex, insisting: 
"For though they that speak of this subject used to confound jus and lex (right 
and law), yet they ought to be distinguished, because RIGHT consisteth in 
liberty to do or to forbear, whereas LAW determineth and bindeth to one of 
60 Gassendi's Latin translation of Epicurus RS XXXIII , indicated in italics, with his 
own interpolations in roman, reads: "Iustitia per se (et quatenus quidem id quod heic est 
iustum, illeic est iniustum) nihil est; ac in homine solitariè spectato reperitur nulla, sed. 
dumtaxat in mutuis hominum societatibus, pro ea cuiusque regionis amplitudines in qua possunt 
pacta de non inferendo, accipiendove nocumento iniri. " See Gassendi: Animadversiones in dec-
imum librum Diogenis Laertii, qui est de vita, moribus, placitisque Epicuri (first published 
1649, 1675 edition), vol. 2, p. 302a, cited by Paganini, "Hobbes, Gassendi et le De Cive," 
p. 188-89. 
61 Behemoth, p. 44. 
62 Leviathan, ch. 13, §13, Curley éd., p. 78. 
63 Ibid. 
2 8 2 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
them."64 So, in A Dialogue between a Philosopher and a Student of the Common 
Laws of England he explicitly accused Coke for confusing jus and lex,65 a 
charge he might well have levelled against Grotius, for whom jus retained the 
idea of right as a liberty, but who nevertheless defined jus naturale as a com-
mand or prohibition.66 
For Hobbes, as for Epicurus, justice is not simply defined with reference 
to our interests. But Hobbes does not move as quickly as Epicurus to a con-
ventional definition of justice. If for Epicurus, it is in the nature of man as a 
social being to arrive at justice through covenants, for Hobbes the route to 
justice is through the laws of natural reason. Like Grotius Hobbes arrives, by 
a slightly longer route, at the conclusion that it is in man's nature to seek jus-
tice through covenants, due to rational theorems forced upon him by the war 
of all against all: "reason suggesteth convenient articles of peace, upon which 
men may be drawn to agreement. These articles are they which otherwise are 
called the Laws of Nature,"67 which he then goes on to itemize: the first be-
ing to seek peace, the second contract as a means to peace, the third and sub-
sequent being Laws of Nature concerning the laying down of a right, the re-
nouncing o f a right, and the transferring of a right.68 It follows from these 
laws, and their implications in terms of obligation and duty, that Injustice is 
injury, or a form of malfeasance: 
And when a man hath in either manner abandoned or granted away his 
right, then is he said to be OBLIGED or BOUND not to hinder those 
to whom the right is granted or abandoned from the benefit of it; and 
[it is said] that he ought, and it is his DUTY not to make void that vol-
untary act of his own, and that such hindrance is INJUSTICE and IN-
JURY, as being sine jure [without right], the right being before re-
nounced or transferred. So that the injury or injustice, in the controver-
sies of the world is somewhat like to that which the disputations of 
scholars is called absurdity. For as it is therefore called an absurdity to 
contradict what one maintained in the beginning, so in the world it is 
called injustice and injury voluntarily to undo that which from the be-
ginning he had voluntarily done.69 
64 Leviathan, ch. 14, §3, Curley ed., p. 79, where Curley notes that John Finnis, in Natur-
al Law and Natural Rights (Oxford: Clarendon Press, 1980, pp. 205-10), emphasizes the 
parallel between Hobbes's position and thatofSuarez [On Laws and God theLawgiver, 1.2.5). 
65 EW 6, p. 73, see Curley, p. 79, n. 4. 
66 Grotius Dejure belli ac pads 1.1.5, noted by Curley, p. 79. 
67 Leviathan, ch. 13, §14, Curley ed., p. 78. 
68 Ibid., ch. 14, §§4-7, Curley ed., pp. 80-81. 
69 Ibid., ch. 14, §7, Curley ed., p. 81. 
2 8 3 
PATRICIA SPRINGBORG 
If justice is honouring contracts and obedience to the law, injustice the 
failure to live up to the terms of the contract or, worse, efforts to retract rights 
that have already been contracted away, injustice is therefore an absurdity. 
But this fact alone is not sufficient to deter individuals from unlawful or un-
just behaviour. It is in the nature of rational theorems that they bind in foro 
interno, in the internal court of reason, without necessarily binding in foro ex-
terna, in the external court of human affairs.70 To prevent precisely this form 
of malfeasance the act of contract must be paralleled by an act of authoriza-
tion, which empowers a sovereign to convert jus into lex. Hobbes, like Machi-
avelli, argues the priority of the princeps as lawgiver, claiming in the Dialogue 
between a Philosopher and a Student of the Common Laws that lawmakers and laws 
are logically prior to justice and injustice: 
Laws are in their nature antecedent to justice and injustice. And you 
cannot deny that there must be law-makers before there were any laws, 
and consequently before there was any justice (I speak of human jus-
tice); and that the law-makers were before that which you call own and 
property of goods or lands, distinguished by meum, tuum, alienum.71 
Discovering that the student takes as a definition of Justice the definition 
of Aristotle and the Common Lawyers, of "giving to every man his own," the 
Philosopher in the Dialogue embraces this principle as his point of departure 
for "the science of just and unjust," pointing out that the very substance of 
Justice depends on the particular laws of "propriety" (property) that a sover-
eign has set up. This is simply a restatement of Hobbes's position in 
Leviathan, where he develops his case more fully, once again with reference 
to the Aristotelians: 
And this is also to be gathered out of the ordinary definition of justice 
in the Schools. For they say that justice is the constant will of giving to every 
man his own. And therefore where there is no own, that is, no propriety, 
there is no injustice; and where there is no coercive power erected, that 
is where there is no commonwealth there is no propriety; all men hav-
ing right to all things; therefore where there is no commonwealth there 
is nothing unjust. So that the nature of justice consisteth in keeping of 
valid covenants; but the validity of covenants begins not but with the 
constitution of a civil power sufficient to compel men to keep them; 
and then it is also that propriety begins.72 
70 See De Cive (EW 2, pp. 45-46). 
71 EW 6, p.29. 
11 Leviathan, ch. 15, §3, Curley ed., p. 89. 
2 8 4 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
It is in this way that jus and lex are mutually entailed and we can show 
that Hobbes, far from being a legal positivist in the ordinary sense, is closer 
in fact to Scholastic thought: 
The law of nature and the civil law contain each other, and are of equal 
extent. For the laws of nature, which consist in equity, justice, gratitude, 
and other moral virtues on these depending, in the condition of mere 
nature (as I have said before in the end of the 15th chapter) are not 
properly laws but qualities that dispose men to peace and obedience. 
When a commonwealth is once settled, then are they actually laws, and 
not before; as being then the commands of the commonwealth; and 
therefore also civil laws; for it is the sovereign power that obliges men 
to obey them. For in the differences of private men, to declare what is 
equity, what is justice, and what is moral virtue, and to make them bind-
ing, there is need of the ordinances of sovereign power, and punish-
ments to be ordained for such as shall break them; which ordinances 
are therefore part of the civil law. The law of nature therefore is a part 
of the civil law in all commonwealths of the world.75 
In Leviathan Hobbes goes out of his way in fact to rebut the legal posi-
tivist position that "justice is whatever the law says it is" and an "unjust law" is 
simply an oxymoron. He makes witty play on Psalm 14:1-3 "The fool says in 
his heart, 'There is no God, '" to argue precisely the foolishness of arguing 
"there is no such thing as justice," or that justice is whatever men decide con-
duces to their benefit. He makes the argument, significantly, in the context 
of broken covenants in general, and with reference to " Coke's Commentaries 
on Littleton," which make the case for setting aside a king, in particular: 
The fool hath said in his heart: "there is no such thing as justice"; and 
sometimes also with his tongue, seriously alleging that: "every man's 
conservation and contentment being committed to his own care, there 
could be no reason why every man might not do what he thought con-
duced thereunto, and therefore also to make or not make, keep or not 
keep, covenants was not against reason when it conduced to one's ben-
efit."74 
Edwin Curley in his commentary notes that "the position Hobbes ascribes 
to the fool is very like the one Grotius ascribes to Carneades, whom he takes 
as representative of those who deny natural law"; and he points to an incon-
73 Ibid., ch. 26, §8, Curley ed., p. 173. 
74 Ibid., ch. 15, §4, Curley ed., p. 90. 
2 8 5 
PATRICIA SPRINGBORG 
sistency between Leviathan and De Cive, where Hobbes's position appeared to 
be close to Carneades' in claiming that "in the state of nature profit [utilitas] 
is the measure of right [jus]. It is true that in De Cive Hobbes gives a curi-
ous redescription of his claim that "The laws of nature oblige in foro interna. 
that is to say, they bind to a desire they should take place, but in foro externa. 
that is to putting them in act, not always," when he makes the following ad-
dendum: "Briefly in the state of nature, what is just and unjust, is not to be es-
teemed by the actions, but by the counsel and conscience of the actor."76 But 
this is to emphasize that only in the state of nature, before the conversion of 
jus into lex, can justice be attributed to jus — and then we might rather say that 
it is an impulse to justice, rather than justice as such. It is a position that 
Hobbes explicitly abandons in Leviathan, where he says of the state of nature: 
"The notions of right and wrong, justice and injustice, have there no place."77 
Rather than being an inconsistency then, as Curley claims, Hobbes's position 
has in fact changed between the work of 1640 and that of 1652. It is likely that 
the course of the civil war, in many respects an analogue for the state of na-
ture, may have impressed upon him the necessity to close any window that 
would open the opportunity to challenge the prevailing rule of law (lex) in the 
name of right (jus) or justice in the abstract. More importantly, Hobbes's doc-
trine of simultaneous authorization and consent, developed between De Cive 
and Leviathan, forbids it. Jus and lex now lie in different zones and the rights 
due to individuals in principle in the state of nature, once exchanged for lex 
under the terms of the social contract, can never be retracted.78 
Hobbes's "science of justice" and civil law 
Hobbes presents himself, in fact, as a theorist in the civil law tradition, 
opposed to "the ancient constitution" and, where he treats it in extenso, he 
tends to subsume feudal law under civil, as we shall later see.79 When, as we 
have noted, the student, B, poses to the teacher, A, the Aristotelian question 
whether a differentiation can be made "between the ethics of subjects and 
75 Curley note to Leviathan, ch. 15, §4, Curley ed., p. 90; cf. De Cive (EW 2, p. 46). 
76 De Cive (EW 2, pp. 45-46). 
77 Leviathan, ch. 13, §13, Curley ed., p. 78. 
'8 I have developed this argument elsewhere, see Patricia Springborg, "Leviathan, the 
Christian Commonwealth Incorporated," Political Studies 24, no. 2 (1976): pp. 171-83 
(reprinted in Great Political Thinkers, ed. John Dunn and Ian Harris [Cheltenham: Elgar, 
1997], vol. 2, pp. 199-211). 
79 SeeJ.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge 
University Press, 1957). 
2 8 6 
B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
the ethics of sovereigns," A gives a civil lawyer's response: "To obey the laws, 
is justice and equity, which is the law of nature, and, consequently, is civil law 
in all nations of the world; and nothing is injustice or iniquity otherwise than 
it is against the law."80 In other words, he appears to put the legal positivist 
position. But in fact, as we have seen, Hobbes's position is more complicat-
ed, and he argues justice as lex only as the conclusion of a syllogism that in-
cludes as its first premise the distinction between jus and lex. To accept the 
distinction between jus and lex, he argues, is to accept that jus is justiciable 
only in terms of lex, and that what justice in practice means, therefore, is that 
which is lawful, and injustice, that which is unlawful. It follows from the con-
version of natural right (jus naturale) into the law of nations (jus gentium), as 
the necessary condition for a legally enforceable peace, that "to obey the 
laws, is the prudence of a subject; for without such obedience the common-
wealth (which is every subject's safety and protection) cannot subsist."81 
For all Hobbes's complaints about infatuation with the Greek and Latin 
tongues as signaling "democratical principles," or the commitment of the 
gentry to Ciceronian Republicanism, on the one hand, Aristotelianism and 
the philosophy of the Schools, on the other, it is precisely the Greek natural 
law and Roman civil law traditions, mediated through early modern thinkers 
like Bodin and Grotius, to which he in fact turns for his theory of justice. 
Much of the content of Behemoth is concerned with showing how the power 
of preachers and parliamentarians has succeeded in replacing "the science 
of just and unjust," argued from Reason, with amorphous concepts of "right-
eousness" extrapolated from the Bible. He complains that "though in the 
Latin and Greek Bible the word justice occur exceeding often, in the English, 
though it be a word that every man understands, the word righteousness 
(which few understand to signify the same, but take it rather for rightness of 
opinion than of action or intention), is put in the place of it," concluding, 
ironically, that "the writings of the heathens, Greek and Latin... were not at 
all behind us in point of virtue and moral duties, notwithstanding that we 
have had much preaching, and they none at all."82 
One is impressed at the degree to which "the science of just and unjust," 
set out programmatically in Leviathan, is contextualized in the later works, Be-
hemoth and the Dialogue between a Philosopher and a Student of the Common Laws, 
in terms of prevailing legal debates over the relative merits of feudal practice, 
Common Law and Civil Law. This is not to say that Hobbes resolves all these 
80 Behemoth, p. 44. 
81 Ibid., p. 44. 
82 Ibid., p. 63. 
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PATRICIA SPRINGBORG 
issues - sometimes his position is ambiguous, as in the case of his attitude to 
feudal law. For instance, in Behemoth he characterizes the stance of "the peo-
ple" in the civil war, as "in general... so ignorant of their duty, as that not one 
perhaps of ten thousand knew what right any man had to command him, or 
what necessity there was of King or Commonwealth." Their ignorance of the 
logic of sovereignty bespoke a feudal mentality: "King, they thought, was but 
a title of the highest honour, which gentlemen, knight, baron, earl, duke, 
were but steps to ascend to, with the help of riches; they had no rule of eq-
uity, but precedents and custom."83 
Hobbes's polemic against "precedents and custom" extends to the an-
cient constitution itself. While refraining from disparaging Magna Carta it-
self, which he deems a form of "statute law," and to which, therefore, obedi-
ence is compulsory, the teacher, A, mocks its claims to ancient liberty. He 
points specifically to "the article wherein a King heretofore hath granted that 
no man shall be distrained, that is, have his goods taken from him, otherwise 
than by the law of the land."84 "For, where was the law of the land, then?", he 
asks. "Did they mean another Magna Charta, that was made by some King 
more ancient yet?" It was precisely the vulnerability of the law of precedent 
to infinite regress upon which the Parliamentarians had played in their effort 
constantly to expand their own scope for action. The people were unwitting 
victims, whom parliamentarians and preachers have intentionally misled, 
and who remain in ignorance of "the rules of just and unjust," even though 
they have been "sufficiently demonstrated" by Hobbes himself.85 
It is not too much to claim that "the science of just and unjust" in Leviathan 
precisely amounts to a theory of how the conversion of jus into lex takes place, 
explicated in terms of theories of natural right and Roman law, as we have 
seen. The state of nature is intolerable, precisely because there no generally ac-
cepted legal conventions obtain. And one of the most forceful reasons for 
erecting a sovereign, is that the concept of Justice in Natural Law has no con-
tent, and is practically inoperable, until the sovereign, with authority to define 
legal terms, is established. Hobbes adopts the Roman Law attribute of the sov-
ereign as the source of all laws of property,86 in a very strict sense, then.87 
83 Ibid., p. 4. 
84 Ibid., p. 35. 
85 Ibid., p. 39. 
80 See M.P. Gilmore, Argument for Roman Law, p. 97, who dicusses the sovereign as the 
source of legal proprietary rights in Roman Law. 
87 "Laws are in their nature antecedent to justice and injustice. And you cannot deny 
that there must be law-makers before there were any laws, and consequently before there 
was any justice (I speak of human justice)." EW 6, p. 29. 
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B E H E M O T H AND I-IOBBES'S "SCIENCE OF J U S T AND UNJUST" 
Justice according to Plato and Aristotle, "giving to every man his own," is 
a vacuous imperative until the relevant terms have been defined by statute. 
In Leviathan Hobbes specifies Roman Law as the source of this legal theory: 
For before constitution of sovereign power (as hath already been 
shown) all men had right to all things, which necessarily causeth war; 
and therefore, this propriety, being necessary to peace, and depending 
on sovereign power, is the act of that power, in order to the public 
peace. These rules of propriety (or meum and tuum) and of good, evil, 
lawful and unlawful in the actions of subjects are the civil laws; that is to 
say, the laws of each commonwealth in particular (though the name of 
civil law be now restrained to the ancient civil laws of the city of Rome, 
which being the head of a great part of the world, her laws of that time 
were in these parts the civil law).88 
Hobbes had made a considerable advance on the social contract theory 
of Epicurus. The intervening millennium had seen, first the development of 
legal codifications, and later the recovery of the Roman Law tradition and its 
civil law practice. The thirteenth century rediscovery of the Institutes of Jus-
tinian, which heralded the era of the humanist Glossators and Postglossators 
had seen the gradual co-optation of theories of Natural Right by Canon Law. 
One cannot underestimate the ingenuity with which Hobbes melded these 
traditions in a theory of sovereignty which, although anticipated by Machi-
avelli and Bodin, constituted a systematic and demonstrable science of jus-
tice, richly contextualized in terms of feudal and civil law. To the man best 
known for the concept of the "war of all against all," we owe in fact a "science 
of just and unjusf fundamental to the modern theory of rule of law, and one 
which has now been extended from the sovereign nation state to the inter-
national system, where Hobbes believed the writ of law could not run. It is to 
defend this achievement, by means of which rule of law can be upheld across 
borders, across nations and even across cultures, that we wish to hold to ac-
count those who would let Behemoth loose. Leviathan, "mortal god and king 
of the proud," with incomparable power on earth, is the nation state whose 
sovereignty we still defend in the name of peace. 
88 Leviathan, ch. 18, §10, Curley ed., p. 114. 
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