Geoffrey Owens

Contracts and Fear in Leviathan

In his work Leviathan, Thomas Hobbes makes a thorough argument
for an absolute monarch established through a collective and irrevocable
covenant between the subjects. This authoritarian system is held up as the
only stable alternative to the violent and chaotic state of nature. Key to
the structure of his argument is his claim that if covenants that are derived
from fear are invalid, then no commonwealth can function properly.
Hobbes makes this claim as a consequence necessity of his argument that
the commonwealth operates upon fearof his belief that the commonwealth
is founded and maintained upon fear. He suggests that men enter a
commonwealth due to a fear of the state of nature or the sovereign, and
without that prescription on contracts, the commonwealth cannot
functionEssentially, his claim is that all covenants even those in a lawabiding state are enforced ultimately through fear of violence. However, I
find that his argument that covenants entered into because of fear are valid
inherently flawed, hinging upon his claim that contracts must be entered
into voluntarily.
Hobbes defends contracts made under fear in to defense protectof his
conception of sovereign power. The very founding covenant that creates a
commonwealth is, in fact, one entered into due to fear of the alternatives.
Hobbes argues that the commonwealth is erected by people in order to
defend them from the invasion of foreigners and the injuries of one
another (XVII.13). In other words, this covenant of every man with
every man (XVII.13) proceeds from the fear of the violence of the state of
nature. As such, if no covenant initiated due to fear can be valid, then
Hobbes own definition of the commonwealth is invalid. The sovereign, says
Hobbes, hath the use of so much power and strength conferred on him that
by terror thereof he is enabled to conform the wills of them all to peace at

home (XVII.13). Under this model, the sovereign (and the awesome
power he commands) is the only reason why people would obey the rules of
the government. If the implicit or explicit threat of violence invalidates the
covenant, then the commonwealth is invalidated a proposition that Hobbes
is staunchly against..
Hobbes also makes this claim in order to discourage rebellion against
a conquering ruler. Hobbes describes the case of a commonwealth by
acquisition, in which menauthorize all the actions of that man or
assembly that hath their lives and liberty in his power, (XX.1). This contract
is not entered into under fear of one of the contracting parties rather, men
enter it with each other under the coercion of their new sovereign.
Nevertheless, if contracts entered under duress are valid under Hobbes
view, then these subjects would have no right to rebel against this
conquering sovereign, even if it were to become within their power to do so.
Since this contract is valid in perpetuity, these men are obliged to
obedience (XX.2) forever. This is another case of Hobbes constructing his
contract and natural law in order to protect authority.
However, I do not find Hobbes argument that covenants entered into
because of fear are valid convincing. Hobbes takes the example of
covenanting to pay ransom in exchange for ones life: it is a contract
wherein one receiveth the benefit of life; the other is to receive money ,
where no other law (as in the condition of mere nature) forbiddeth the
performance, the covenant is valid, (XIV.27). Immediately two problems
with this proposition become clear, the first (perhaps more subjective) being
that one is offered the benefit of life is a mere non-harm truly a benefit?
Hobbes would likely argue yes, but this question lies outside the bounds of
his work. Nevertheless, it is only a benefit in the sense that it is the absence
of a manufactured harm direct extortion. The second issue here is the fact
that in the Hobbes Sstate of Nnature, this contract would be unenforceable
without a visible power to keep them in awe, and tie them by fear of
punishment to the performance of their covenants, (XVII.1), the victim

would have no reason to uphold his end of the contract without the
aggressor literally continuing to threaten him.
The true flaw in Hobbes reasoning springs from his claim that all
contracts must be entered into voluntarily. I will argue that within his
definitions, entering into a contract under violent coercion is not, in fact, a
voluntary choice.
Contracts are entered into voluntarilyHobbes defines contracts at
their most basic level as a mutual transfer of some previously-existing
rights. He goes on to claim that this is inherently voluntary:
Contract is a transferal of rights, For [transferring his right] is a
voluntary act, and of the voluntary acts of every man the object is some
good to himself. (XIV.8). In our example (paying ransom to a criminal for
ones life) this holds up; in the state of nature the criminal would have the
right to harm you (if we accept Hobbes essential non-definition of rights:
that in the state of nature, everyone has a right to everything, which allows
individuals to have conflicting rights) and exchanges that for money. The
victim, meanwhile, chooses vice versa.
These choices are, according to Hobbes definitions, voluntary.
Hobbes defines a voluntary act as
Definition of voluntary:
A voluntary act is that which procedeth from the will, which is the last
appetite in deliberating. (VI.53). In other words, a voluntary act is simply
one that the sum total of appetites and aversions lead to. This suggests that
there must be some other possible options available, otherwise there would
be no deliberation one would simply be immediately led to the singular
conclusion. However, Hobbes argues that even a life-and-death choice is
voluntary,
Fear and liberty are consistent, as when a man throweth his goods into the
sea for fear the ship should sink, he doth it nevertheless very willingly, and
may refuse to do it if he will, and may refuse to do it if he will; it is
therefore the action of one that is free And generally all actions which

men do in commonwealths for fear of the law are actions which the doers
had liberty to omit. (XXI.3). In this context a man facing against nature
the distinction of whether or not the choice is voluntary is somewhat
unimportant, since the consequences of the choice are the same. However,
in the case of contracts, the validity of the contract hinges on the
voluntariness of the choice.
Deliberation is an act of reason
The laws of nature prohibit actions leading to harmHobbes
declaration that contracts entered into out of fear are valid exists in his
framework of the Laws of Nature. The whole structure draws back to the
First Law of Nature, which is a rule, found out by reason, by which a man
is forbidden to do that which is destructive of his life or taketh away the
means of preserving the same (XIV.2). Here we reach a central flaw of
Hobbes argument parties to contracts are first and foremost bound to this
law, which is more fundamental than any contract. As such, anyone who is
subject to a choice between certain harm and anything else must, exclusive
of all else, choose the second as to avert violation of this law. Specifically,
any choice about entering a contract under fear of harm cannot lead to
deliberation within the laws of nature since not entering into the contract
is literally not an option. As such, the contract is not voluntarily entered into
under Hobbes view of will, and invalid inside the framework of the laws of
nature which is where Hobbes constructs his definitions of contracts.
Under the laws of nature, contracts entered into due to fear cannot be
rationally enforced. Nevertheless, Hobbes still claims that there is an
obligation to uphold them even in a commonwealth unless the laws protect
against it. Hobbes makes this claim in order to defend the authority of the
sovereign over his subjects against future changes of heart, and especially
to protect the authority of a conquering sovereign. Although I argue that
contracts entered due to fear are invalid, this does not invalidate the

concept of a commonwealth. A commonwealth that men choose due to the

perceived benefits it can provide them collectively, rather than fear of the
alternative, for instance, is perhaps more morally binding than one that men
are forced into at gunpoint. Ultimately, Hobbes position on contracts
entered under duress is harmful, as it encourages a shortsighted view of
establishment of government, potentially leading men to choose the ruler
capable of inflicting the greatest harm, rather than the greatest well-being.

1332 wordsA Law of Nature is a rule, found out by reason, by

which a man is forbidden to do that which is destructive of his life or taketh
away the means of preserving the same, and to omit that by which he
thinketh it may be best preserved. (XIV.2)
Thus given the dilemma between that which is feared or entrance into a
harmful contract, a rational actor must choose the contract, as to choose
harm is a departure from reason (cf laws of nature)
Thus there is only one choice; there is no deliberation; and it is not a
voluntary act therefore these contracts of coercion are invalid.