Liberty and Responsibility
Given the close ties that are often drawn between free will and moral responsibility, Bramhall points out that it appears that Hobbes’s account is vulnerable to the “liberty objection,” according to which Hobbes’s account of liberty is insufficient because it cannot distinguish between moral and non-moral agents (LN 44; Russell 2011: 432). Many people have accepted what can be called the liberty assumption, that what distinguishes morally responsible agents from non-moral agents is liberty. If Hobbes accepts the liberty assumption, then it is going to turn out that animals, children, and madmen—all of which act voluntarily, and thus all of whom have liberty—are moral agents, just as ordinary adult humans are. However, animals etc. are not liable to being blamed and punished in the same way as ordinary adult humans, so are not morally responsible. Hobbes must, then, reject the liberty assumption or fall victim to the liberty objection. If not liberty, though, then what could ground the distinction between moral and non-moral agents?
In order to answer this question, it is simplest to consider Hobbes’s theory of punishment: all and only moral agents are liable to punishment for wrongdoing, so the same thing that distinguishes individuals that are and are not liable for punishment for wrongdoing must distinguish moral from non-moral agents. However, Hobbes is clear that an individual can be punished by the state only if she has submitted to the civil law, giving up her natural rights: Punishment is “an evil inflicted by a public authority on him that hath done or omitted that which is judged by the same authority to be a transgression of the law, to the end that the will of men may thereby the better be disposed to obedience” (Leviathan 28.1, cited from Russell 2011: 436). Note that here Hobbes says that punishment has two necessary conditions: it must be 1) a response to a judgment that a law has been transgressed and 2) for the purpose of better disposing men to obedience.
The former condition is the one that concerns us here. As Russell (2011: 436) points out, in order for an individual to transgress a law on Hobbes’s theory, she must have consented to giving up whatever natural rights she had that the law constrains. No one is subject to a civil law without freely consenting to its authority. As such, a necessary condition of being liable to punishment—thus a necessary condition of being a moral agent—is having consented to the law. Whatever one does to an individual in the state of nature, however horrible and in response to whatever action of the other person, it cannot be punishment because punishment can only be inflicted upon those who have consented to it.
Hobbes thus has the tools to draw a sharp distinction between the status of normal adult humans, on the one hand, and children, madmen, and animals on the other. Normal adult humans have freely assented to the authority of the sovereign, and have given up their natural rights. This is what grounds their being moral agents. However, animals, children and madmen have not abdicated their natural rights, so they are not moral agents. Thus, he avoids the liberty objection by rejecting the liberty assumption. Liberty is necessary to be a moral agent, insofar as one can only be subject to the law by freely abdicating her natural rights, but liberty is not sufficient, because there are some individuals that are free, but retain their natural rights. These individuals are not under any civil law, and thus are not morally responsible.
Obligation and Ability
Bramhall raises a further objection to Hobbes’s account of liberty, which Russell (2011: 431) calls the “dual-law objection” (LN 3). This objection points out that on Hobbes’s account, there are two laws that are in potential conflict. On the one hand, there are moral laws that an individual is obligated to obey. However, there are also physical laws, and if Hobbes’s determinism is correct, then it is impossible for individuals to act contrary to these laws. It follows, then, that whenever a person acts contrary to the moral law, the physical law made it impossible for her to obey (and, of course, that whenever a person acts in line with the moral law, the physical law made it impossible for her to violate it).
This, Bramhall believes, demonstrates that a moral agent cannot be subject to both the physical and moral laws, because otherwise there is no way to make sense of reward and punishment (Russell 2011: 432). If the physical law necessitates one’s action, then violating the moral law is not blameworthy, and abiding by the moral law is not praiseworthy. Praise and blame, reward and punishment, depend on a robust form of liberty extending beyond mere voluntariness: the agent must not be subject to physical laws that necessitate her actions. Thus, the existence of a moral law requires that agents are not subject to the physical law in such a way that it necessitates their actions (Russell 2011: 433).
Russell argues that Hobbes’s response to the dual-law objection comes in two parts, corresponding to civil law, and laws of nature. Russell describes Hobbes’s response to the objection that makes use of civil law as similar to his response to the liberty assumption. As described above, liberty is insufficient for being a proper candidate for reward and punishment. Rather, what is required is that one has consented to the authority of the sovereign.
Contrary to Bramhall, it is not free will that serves to ground these practices and the attitudes associated with them, but rather the agent’s status as a subject in a system of law. This is something that only the agent can bring about through his own free act of consent. We may conclude, therefore, that we are not required to rest the foundations of morality on an illusory and incoherent doctrine of free will, because mere voluntariness and social utility cannot, by themselves, play this role. (Russell 2011: 437-438)
More would need to be said to motivate this response to the dual-law objection. As it stands, it appears that Bramhall and Hobbes have merely proposed differing conceptions of desert. Bramhall believes that a critical component of punishment being just is that the act being punished was not physically necessitated. The response that Russell offers on behalf of Hobbes does not respond to this contention directly, but merely proposes a different criterion of desert: a person can deserve reward or punishment only if they have voluntarily subjected themselves to the moral law. The argument for this position is beyond the scope of this page, but it is noteworthy that Bramhall’s objection is not one specific to Hobbes’s account of liberty, but of his broader theory of morality.
The above response, though, is not plausible in the case of laws of nature. For Hobbes, the laws of nature, or “eternal moral law” consists of “‘theorems’ or ‘conclusions’ about which actions are conducive to peace and happiness and which actions lead to war and death” (Russell 2011: 439), and all individuals are subject to it regardless of their consent. Thus, even individuals that have never consented to any moral laws whatsoever are subject to the eternal moral law. However, Russell argues that it would be a mistake to attempt to push the objection that the eternal moral law and physical law can be in conflict, because the eternal moral law is subsumed by the physical law (2011: 439). As noted, the eternal moral law is a made up of descriptions about how to best maintain peace and avoid war, rather than prescriptions about how one ought to act. These descriptions do not have morally prescriptive content, but are only prescriptive in reference to our practical desire for peace and to avoid war. They remain a part of the physical law, as they “describe the motions of certain kinds of body, human beings, and the consequences that diverse motions will have by way of maintaining or destroying the social body that they form when united together” (Russell 2011: 439). Because the eternal moral law is a part of the physical law, the evils that come about from violating it can hardly be called punishments. Just as it is not a reward if one is benefited as the result of acting in accordance with the physical law of gravity, it is not a reward if one is benefited as a result of acting in accordance with the physical law that individuals oftentimes respond to gifts with peace and cooperation. If the eternal moral law does not ground punishment, reward or obligation, though, then the basis for the dual-law objection is undermined.
Advantages of Rejecting the Liberty Assumption
Though many find the liberty assumption—again, that the distinction between moral and non-moral agents rests on liberty—very intuitive, Russell argues that Hobbes’s rejection of it is actually an advantage to his account. Accepting the liberty assumption, he argues, gives rise to a dilemma: one must then accept that free agents have a capacity to transcend the natural law (libertarians), or posit a mechanistic account of freedom in which physical laws determine individuals’ actions (compatibilists). Compatibilists that accept the liberty assumption must find an account of liberty such that they do not fall prey to the above liberty objection. Liberty for these compatibilists must be attributable to all and only normal human adults, not to non-moral individuals such as madmen, children, or animals. This has proven difficult while offering a mechanistic account. Hobbes, as we have seen, avoids this difficulty by granting liberty to all beings that act voluntarily, but restricting moral agency to only those that submit to the authority of a sovereign (Russell 2011: 442-443).
Libertarians that accept the liberty assumption face an opposite difficulty. For these libertarians (such as Bramhall), the challenge is to explain the particular capacity that moral agents have, and how it is able to transcend physical laws (Russell 2011: 442). The distinction between moral and non-moral agents appears too significant, as being a moral agents is dependent on a power that is quite distinct from any other. Hobbes of course has no difficulty here, as he simply denies that liberty requires any ability to transcend the physical law.
Thus, by positing his own contractualist theory of moral obligation, Hobbes avoids some of the difficulties that have plagued not only many of his contemporaries, but those that have come after him as well. Whether some version of his contractualist theory is too high a price to pay for avoiding these challenges, though, remains to be seen.