Online Colloquium (2): David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (Eleanor Curran).

This online colloquium has been established to discuss David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. We begin with an introduction to the text by the author, which will be followed by responses from Miguel Vatter, Eleanor Curran, Thomas Poole, and finally a reply by David Dyzenhaus Many thanks to Cambridge University Press for supporting this colloquium.

Eleanor Curran (University of Kent)

Contribution to Online Colloquium on David Dyzenhaus’s The Long Arc of Legality, sections on Hobbes.

First, thank you to Gonzalo Bustamente Kuschel and to the European Hobbes Society for the opportunity to comment on David Dyzenhaus’s important new book, The Long Arc of Legality and specifically, on his arguments about Hobbes’s political and legal theory. 

Dyzenhaus argues, against the orthodoxy of Hobbes scholarship, that Hobbes proposes both a constitutionalist and a ‘rule of law’ political order. 

Dyzenhaus also wants to use Hobbes in the service of his larger project to solve ‘the puzzle of law’s authority’. (Dyzenhaus’s intro. to colloquium, p. 1) The question he wants to answer is ‘how is sheer political power transformed into legal right, the right to tell legal subjects – those subject to the state’s power – what to do?’ (The Long Arc of Legality, preface, ix).

This question of law’s authority leads to the thorny problem, within the philosophy of law, of how there can be very unjust law and after exploring the failure of both Hart and Dworkin to adequately solve this, Dyzenhaus turns to Hobbes. While acknowledging that Hobbes excludes the possibility of unjust law by saying that all law from the sovereign is ‘by definition just’, (D’s intro. p. 1.) he says that Hobbes’s category of ‘iniquitous law’ ‘points to an insight crucial to the whole argument of my book’ (D’s intro, p. 2). This insight is that ‘very unjust law is suspect as law because of the way it undermines the equality of the legal subjects it targets, their equality before the law’ (D’s intro. p. 2).

Dyzenhaus suggests that despite denying the existence of fundamental law, Hobbes implies something similar when he refers to such a law in ‘every Common-wealth’ which ‘being taken away, the Common-wealth faileth, and is utterly destroyed; as a building whose Foundation is destroyed’ (D quoting Leviathan 2014, CUP, ed. Richard Tuck, 199-200).

This allows us to see Hobbes’s solution to the problem of law’s authority. The solution (as Dyzenhaus interprets Hobbes), lies in the way Hobbes ‘configures the three elements of a successful theory of such authority’. These three elements are: the fundamental principles of legality; the role of officials in interpreting such principles; and the ‘constitutionalist idea’ which combine the first two elements in the contract of authorisation whereby individuals in the state of nature contract with each other to create the state and obey the sovereign who represents them (D’s intro. p. 2).

Dyzenhaus acknowledges a debt to Michael Oakeshott’s essay on the rule of law which posits ‘a vision of a state in terms of the rule of law which ‘hovers over the reflections of many so-called “positivist” modern jurists’, the most important of whom is Hobbes. The ‘right-giving basis of legal order’ in Hobbes is to be found in ‘his version of fundamental principles of legality articulated in Leviathan as the laws of nature,’ the science of which is ‘the true and onely Moral Philosophy’, (D’s intro. p.3, quoting Oakshott). Oakshott then ‘observes that they (the laws of nature) amount to no more than an analytic break-down of the intrinsic character of law, . . . the jus inherent in genuine law . . .’ (ibid.). 

Dyzenhaus takes this as his starting point and it is this intriguing proposal, that Hobbes’s laws of nature comprise the fundamental principles of legality, thereby providing the foundation of a rule of law legal order, that I would like to look at more closely. 

Dyzenhaus hints, (as above), that a crucial principle involved in both Hobbes’s theory and in the idea of the rule of law is that of the equality of legal subjects before the law. The most obvious reference to this in the laws of nature is in the eleventh law, Equity, according to which, ‘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’ (Leviathan, Ch. 15)This gives us equality before the law, one of the most important rule of law principles.

I think that Dyzenhaus is on strong ground here. I agree that Hobbes’s law of equity can provide an important rule of law principle, as long as the argument that ties this into the sovereign is also accepted. That is, Dyzenhaus’s argument that although the sovereign is not ‘subject to legal principles’ in the way the discussion is usually formulated, the sovereign’s authority is constituted by fundamental principles which are ‘the right giving principles of the legal state’. (D’s intro. p. 6). The sovereign must ‘concretise general laws until they can be applied to legal subjects consistently with the laws of nature’ (ibid.). If at some point the sovereign fails to do this and acts against the people then they are no longer obliged to obey him and so his sovereignty fails.

The part of Dyzenhaus’s argument that I find a little puzzling is his proposal that it is the laws of nature in their entirety that comprise the fundamental principles of legality in Hobbes’s theory. ‘The right-giving basis of the legal order resides in its fundamental principles of legality. In Hobbes, these are his laws of nature’ (The Long Arc of Legality, intro. p. 5).

So, what ‘legitimates the legal order – what gives it the quality of legality which distinguishes it from the gunman writ large – ‘is its compliance with the laws of nature. And any enacted law ‘must also be interpretable by judges in light of the laws of nature’ (ibid., p. 135). This constrains the sovereign ‘not because of duties to its subjects’ which Hobbes, of course, explicitly rules out, but ‘rather the constraints come about because of the duty the judges owe to the sovereign to interpret enacted law in the light of their understanding of the laws of nature’ (ibid., p. 136).

Dyzenhaus refers to what he calls ‘the interpretive spectrum’ with the ‘duty end’ being established as above by judges being under a duty to strike down a law that fails either on the ‘validity proviso’ or on the need to be compatible with the laws of nature, and the ‘aspiration end’ being Hobbes’s statement in Ch 30 that the sovereign must make ‘good laws’ with good here not being good for the sovereign only but must also be good for the people (‘Needfull, for the Good of the People, and withal Perspicuous’ Leviathan, Ch. 30). This gives Dyzenhaus a connection to the reason why it is rational to authorise the sovereign. ‘As we have seen, not only is it the case that the laws of nature condition the content of the law but also they do so through their relationship to the reasons for obedience’ (The Long Arc of Legality, p. 143).

I would like to know more about the reasons for choosing all the laws of nature together as providing the ‘fundamental principles of legality’ rather than certain specific laws and principles such as the eleventh law of equity and the principle of natural equality (outlined in the ninth law ‘against pride’) which underlies it. Hobbes then reinforces his commitment to equity, as above, in Chapter 30, when he expands on the duty of the sovereign to procure the ‘safety of the people’. 

‘The safety of the People, requireth further, from him, or them that have the Soveraign Power, that Justice be equally administered to all degrees of People; that is, that as well the rich, and mighty, as poor and obscure persons, may be righted of the injuries done them; so as the great, may have no greater hope of impunity, when they doe violence, dishonour or any Injury to the meaner sort, than when one of these, does the like to one of them: For in this consisteth Equity: to which, as being a Precept of the Law of Nature, a Soveraign is as much subject, as any of the meanest of his People’ (Leviathan, Ch. 30, para 15).

I wonder whether some of the more obscure or more purely ‘moral’ laws of nature are needed for the rule of law argument. For example, the sixth law, ‘Facility to Pardon’, ‘That upon caution of the Future, a man ought to pardon the offences past of them that repenting, desire it’ (Leviathan, Ch15). Also, the eighth, ‘against Contumely’ ,’That no man by deed, word, countenance, or gesture, declare Hatred or Contempt of another’ (Leviathan, Ch 15)And the twelfth, ‘Equall use of things Common’, That such things as cannot be divided, be enjoyed in Common, if it can be;  . . . otherwise Proportionably to the number of them that have Right’ (Leviathan, Ch 15).

I would be very interested to hear more about this choice, to include all of the laws of nature or rather, the laws of nature as a whole, as part of the argument that Hobbes was a rule of law theorist, rather than choosing those specific principles, such as equality before the law, which Hobbes clearly endorses. 

The book is a very interesting and stimulating read and it opened new possibilities to me of further exploration of the (historically underexplored) so-called ‘liberal’ tendencies in Hobbes’s theory. 

Online Colloquium (1): David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (Miguel Vatter).

This online colloquium has been established to discuss David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. We begin with an introduction to the text by the author, which will be followed by responses from Miguel Vatter, Eleanor Curran, Thomas Poole, and finally a reply by David Dyzenhaus Many thanks to Cambridge University Press for supporting this colloquium.

Miguel Vatter (Deakin University)

Dyzenhaus on Hobbes: Oakeshott meets Schmitt

In The Long Arc of Legality, Dyzenhaus offers his longest and most systematic effort to carry out what many may consider a paradoxical and thankless task: to turn Thomas Hobbes, formerly known for his absolutism, into the father of modern rule of law and even of modern constitutionalism. This book presents a Hobbes who not only holds his own against such 20th century jurisprudential giants like Kelsen and Hart, but also betters them in delivering the correct view of the modern legal state. Dyzenhaus has been avant-garde in setting out a new approach to sovereignty, championed by the likes of Martin Loughlin, Richard Tuck, and now Philip Pettit, that seeks to unify a “strong” theory of state sovereignty with a “weak” theory of the rule of law, or, in Nietzschean terms, how do we get to fit the iron hand of the “cold monster” in the velvet gloves of the rule of law.[1]By “weak” account of the rule of law, I mean the effort to determine a source of the (positive) law’s authority other than the threat of coercive power whose monopoly is held by the modern state. Hence my designation of a “strong” theory of sovereignty – not all theory of sovereignty is based on such monopoly of violence, evidently medieval sovereignty was never characterized by such monopoly, only the modern one is. In what follows I shall pose two questions: can this hermeneutic tour de force be done? And why should we want such a reading of Hobbes?  

  1. Law as command: auctoritas non veritas facit legem

As Dyzenhaus freely admits, Hobbes has always been understood as putting forth a command theory of law. Although Dyzenhaus does not cite this particular formula in this chapter, Schmitt – the great admirer of Hobbes, and one of his most acute interpreters – always liked to remind his readers that for Hobbes auctoritas non veritas facit legem.[2] Law is law, and subjects are obligated to follow it, not because it has a “rational” foundation (not because it expresses some “truth” about what is just or good) but because of the authority of “who” commands it. As he says in ch.42 of the Leviathan, “Subjection, Command, Right and Power are accidents, not of Powers, but of Persons,” that is, they are accidents of representatives.[3] “One Power may be subordinate to another, as the art of a Saddler, to the art of a Rider,” but from this it does not follow that a saddler is politically subject to a rider. “Therefore as from the Subordination of an Art, cannot be inferred the Subjection of the Professor; so from the Subordination of a Government, cannot be inferred the Subjection of the Governor” (Ibid.). Or, as Schmitt captures the point: Hobbes “has emphasized time and again that the sovereignty of the law means only the sovereignty of men who draw up and administer this law. The rule of a higher order, according to Hobbes, is an empty phrase if it does not signify politically that certain of this higher order rule over men of a lower order” (Schmitt 2007: 67).

In the first part of chapter 2 (2.1) Dyzenhaus begins by attacking this traditional understanding of Hobbes. His solution is to say, in a nutshell, that law is law because whatever the sovereign commands must express underlying “fundamental principles of legality” (88). Furthermore, it is because subjects know that the sovereign is itself subject to these principles (which are of course “rational” ones) that individuals, in the state of nature, covenant with one another in order to “authorize” such a legality-conscious sovereign. The latter is what Dyzenhaus calls “the constitutionalist idea” and it is the basis on which Hobbes has here been transformed into the father of modern constitutionalism. 

Obviously, Dyzenhaus does not deny what is undeniable, namely, that “Hobbes’s legal theory presents some of the key elements of a command theory of law” (89), above all his explicit and unequivocal statement that “the authority of the law… consisteth in the command of the sovereign only” (Leviathan ch 26, p.189 Tuck edition, emphasis mine). Dyzenhaus’s argument is more subtle: he says that Hobbes was only partially a command theorist. He adduces as evidence the following text: “law in general is not counsel but command; nor a command of any man to any man, but only of him, whose commands is addressed to one formerly obliged to obey him” (Leviathan, p.183, emphasis of Dyzenhaus). The italicized phrase suggests to him that for Hobbes the “basis of legal order is not therefore coercion” but “an obligation which derives from the social contract between the individuals in the state of nature whose agreement constitutes the state and authorizes the sovereign to act in their name” (90). I venture that most readers would understand Hobbes’s phrase to mean simply this: that once the subject accepts, through the social contract, to be under  obligation to the sovereign, they shall remain under such obligation to obey its commands, no matter what is subsequently commanded. If they choose not to obey the laws, viz. what the sovereign commands, it is because they have opted out of the covenant (that they were presumed to have entered), and thus no longer recognize the authority of the commander over them; this, in turn, justifies the sovereign to treat them not as subjects and citizens, but as potential enemies. 

Most importantly, on Hobbes’s terms, any individual’s choice not to recognize the authority of the commander does not affect the quality of this authority itself, which remains exactly the same whether 1000 people contract with each other, or only 999. The reason is that this authority depends on the fact that the 1000 individuals are united into one political body thanks to the onerepresenter that they each choose to subject themselves to. Political unity is not a function of aggregation (of votes or any other signs), as Hobbes clarifies in chapter 16: “A Multitude of men are made One Person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular. For it is the Unity of the Representer, not the Unity of the Represented, that maketh the Person One. And it is the Representer that beareth the Person, and but one Person: And Unity, cannot otherwise be understood in Multitude” (Hobbes 2010, 82/100). The construction of the Leviathan as “Mortall God” occurs in the following chapter 17, where Hobbes concludes that in order to achieve peace it is necessary that all individuals “reduce all their Wills… unto one Will: which is as much to say, to appoint one Man, or Assembly of Men, to beare their Person… and therein to submit their Wills, every one to his Will, and their Judgment to his Judgment. This is more than Consent, or Concord; it is a reall Unitie of them all, in one and the same Person…. This done, the Multitude so united in one Person, is called a Common-wealth, in latine Civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortall God, to which we owe, under the Immortall God, our peace and defence…. And he that carryeth this Person, is called Soveraigne” (Hobbes 2010, 87-88/104-105). Two artificial persons, and two relations of representation, are involved here: the person of the civitas or “the people” understood as one group personality, and the artificial person of the sovereign, who bears or impersonates the group personality of the civitas or people. As has been noted by several commentators (Pitkin 1967; Hofmann 2007; Skinner 2005; Runciman 2005), the consent between individuals in appointing one person (the sovereign) to represent each of them singly is not enough to warrant the claim that this same sovereign represents the person of all of the individuals as a whole, as a united people. Schmitt had already made the same point: “the state is more than and something different from a covenant concluded by individuals…. The sovereign-representative person is much more than the sum total of all participating particular wills…. To this extent the new god is transcendent vis-à-vis all contractual partners… obviously only in a juristic and not in a metaphysical sense” (Schmitt 2008a, 98). The personification of the state required by Hobbes’s theory of law as command (for only representative persons issue commands) is based on a symbolic concept of representation which immunizes the representer from the individual will of the represented: the sovereign is not a parliamentary representative who “acts for” their constituency, and this is what makes attempts to democratize Hobbes’s Leviathan dubious. 

Dyzenhaus argues that Hobbes’s sovereign is not “legally unlimited.” The phrase is awfully overdetermined. Dyzenhaus means by it that the sovereign is not “absolutely” above the law because “every sovereign is legally limited by the fundamental rules with which it must comply if it wishes its directives to be recognized as law” (93), but, at the same time, these rules ‘legally’ constitute it as legibus solutus, as having an “absolute” legal authority such no one can judge him, nor can he stand under a higher tribunal, etc.[4] On this reading, Hobbes adheres to some sort of Hartian “secondary rule of recognition, which certifies the validity of all other rules and which exists as a matter of social fact in the practice of legal officials” (93). The basic idea is that, in the formula auctoritas non veritas facit legemauctoritas refers to the “authoritative legal reasons” that must be accepted by both subjects and officials as a condition for them to accept some commands as laws. These “legal reasons” are “content-independent” and that is why they do not refer to some sort of (moral) veritas in order to have force of law. 

So, if it is not their “moral” content, then what gives “legal reasons” their authority? According to Dyzenhaus, Hart was never able to answer in a satisfactory manner this question (96), but Hobbes manages to do so, and for two reasons: a) the idea of law in Hobbes rests on his “political theory,” that is, on the mechanism of social contract and authorization; b) authoritative legal reasons “conditions their content [of law] in a way which explains their force [of law]. Legal reasons cannot have any content whatsoever since their content must be interpretable as consistent with the laws of nature” (97). In short, Hobbes’s “laws of nature” are the functional analogon of Hart’s secondary rules of recognition. Because of their role in the social contract, these laws of nature or “fundamental rules” also account for the “force” of law in Hobbes’s legal theory. Dyzenhaus thus thinks that individuals authorize an absolute sovereign because obedience to its commands will somehow satisfy their anterior interest in being treated equally (under law). Hobbes “presupposes legal subjects who regard themselves as under a duty to obey the law because government under law serves their interest in equality and so they expect that the law to which they are subject will prove interpretable as serving that interest” (99). I shall next discuss whether Hobbes’s idea of authority entails the idea of legal reasons for obedience, and whether the laws of nature really have a “constitutional” function in Hobbes. I shall end my discussion with a few remarks on the nature of Hobbes’s “political theory” of the social contract. 

2. The legal constitution of sovereignty: the laws of nature as fundamental law 

The second section of chapter 2 is the decisive one for Dyzenhaus’s interpretation and it condenses arguments he has made over the last several years in several articles and chapters. Here one finds the claim that Hobbes is the real founder of the modern rule of law. The basic structure of Dyzenhaus’s argument is as follows: “the sovereign is a legally constituted artificial person; Hobbes’s laws of nature are part of the legal constitution of sovereignty; in constituting sovereign authority the laws of nature condition the content of the civil law in a way which makes plausible Hobbes’s claim that there is an antecedent obligation of obedience to the sovereign such that the subject should regard the law as a public conscience” (99). Dyzenhaus’s point is that the Hobbesian sovereign is not “legally unlimited” because it has been “legally” constructed (via the laws of nature and the social contract) to have unlimited legal authority: “the Hobbesian sovereign is a legally constituted sovereign.” In itself this is hardly news: it is part of the definition of sovereignty to be the “legally highest power” or some variant of this paradoxical formula, which as Kelsen and Kantorowicz have shown, is soaked in theology.[5]  What I contest is whether from this definition of sovereignty one can extract what Dyzenhaus wishes to extract, namely, that “justice resides in rule by law, in ruling in a way which lives up to jus. Moreover, rule by law entails, as we would say today, ruling in accordance with the rule of law, which in turn entails ruling in accordance with fundamental legal principles which condition the content of the law,” viz. the so-called laws of nature.  

Dyzenhaus rejects the traditional reading of the laws of nature in Hobbes, namely, that they are functional in establishing that the only valid law is positive law as the command of a factual sovereign power (100). “This conclusion does not follow because the function of the laws of nature is to condition the content of the sovereign’s laws in a way which makes it possible for legal subjects to understand its rule as a matter of right rather than unmediated coercive power. As we saw Michael Oakaeshott suggest, the laws of nature provide a standard of right or justice which is internal to law, the jus of lex” (ibid.). Here we reach the crux of Dyzenhaus’s efforts in The Long Arc of Legality: can Oakeshott’s understanding of the rule of law be made compatible with Hobbes’s theory of sovereignty? I shall address this below. 

But I first need to examine the other claim made in the above passage, namely, that with Hobbes we transition from the rule by law, which undoubtedly all sovereign powers have always done, to the rule of law, which entails giving sovereignty a constitutional framework that, arguably, undermines its absolutist features. Where is such a constitutional framework to be found in Hobbes? Dyzenhaus claims it is found in chapter 29 of the Leviathan, where “Hobbes made the crucial move in developing social contact theory for the modern legal state by turning the Herrschaftsvertrag [the contract of government/MV] into a juridical relationship between ruler and ruled, one mediated by a dynamic relationship between ruler and ruled, one mediated by a dynamic process of application of the law in which the officials answer the legal subject’s question ‘But how can that be law for me?’” (103). In my opinion the textual basis is insufficient to warrant such a claim. 

For Dyzenhaus, “the sovereign is legally constituted at least in that its lawmaking is subject to the equivalent of a Hartian rule of recognition” (103). In chapter 29 Hobbes makes absolutely clear that that the sovereign is not subject to its own civil laws: “For to be subject to Lawes is to be subject to the Common-wealth, that is to the Sovereign Representative, that is to himself; which is not subjection but freedom from the Lawes”. And on chapter 26 Hobbes had clearly spelled out the absolute nature of sovereignty: “for having power to make, and repeale lawes, he may when he pleaseth, free himself from that subjection, by repealing those lawes that trouble him, and making of new… nor is it possible for any person to be bound to himself” (cited on p.104). Surprisingly, Dyzenhaus claims that “this passage does not say that the sovereign in being free from subjection to civil law is legally unlimited. Rather, it tells us something about the legal constitution of sovereignty  because it clarifies what Hobbes meant in chapter 29 when he said that the sovereign is subject only to itself. The sovereign… is an artificial person. It must therefore express itself by artificial means, through law. So its will must take legal form before a subject need take notice of it.” (104) I fail to see how Hobbes’s text says what Dyzenhaus makes it say. Rather, I interpret Hobbes’s words in exactly the opposite sense: the commands of the artificial or sovereign person are law, and not: the commands of the sovereign must take legal form (as if there were an independent legal form they all must assume). Commands take legal form and have the force of law because they issue from a sovereign instance. It is not that commands have the force of law because sovereignty has a legal form. 

For Dyzenhaus’s reading to work, he has to understand the sovereign’s freedom to be “freedom to enact a law to abrogate or to amend an existing law. Until the point where that liberty is exercised, the person or people who occupy the sovereign office as well as the officials to whom they have delegated authority, must act in accordance with the law” (104). This is what Dyzenhaus calls the “validity proviso” (that is, a proviso to the assignation of absolute legal authority to the sovereign): “the sovereign is free to make whatever law it likes provided it complies with the public criteria which permit both officials and subjects to recognize what counts as valid law in their legal order.” (105) This makes little sense to me. For Hobbes, the law is always a function of the sovereign’s command, so adherence to previous law is merely the sovereign continuing to do as he was pleased to do before, until something else pleases him more, and thus he commands differently, and these are the new laws, and no subject or official has the legal authority to resist this change of mind. I find no textual evidence that shows the existence of a scheme in which the law pre-determines the sovereign (that is, “binds” the sovereign, or “bridles” him) in how they can change or abrogate laws. In short, I see no evidence that “Hobbes, then, did not have in mind that the sovereign could make law without complying with public criteria for lawmaking. Rather, he had in mind the equivalent of Hart’s rule of recognition” (104-5). How could one prove this assertion in any case? Nor does the social contract between individuals that creates the sovereign require any “public criteria for lawmaking” and, as far as I can tell, nowhere are such criteria part of the one contract of unification which is also a contract of subjection, since the laws of nature are valid in the state of nature only in foro interno.

The second attempt to soften the absolutist features of Hobbesian sovereignty is grounded on Hobbes’s claim that sovereigns are “subject to the lawes of nature because such laws be divine.” Dyzenhaus thinks that being subject to the laws of nature “limits” in a legal sense the absolute authority of the sovereign. This is the “legality proviso” according to which “the laws the sovereign makes must be interpreted, and so must be interpretable, in light of the laws of nature” (107). He refers to the discussion in chapter 5 of the Leviathan about establishing a common judge endowed with “right reason.” Again, “right Reason, the Reason of some Arbitrator or Judge” (chapter 5) is the reason of a person, not of a law, and what matters here is not the relation between the judge’s reason and “truth” but the relation to its “authority” as judge. 

Dyzenhaus argues that establishing the judge as an artificial person implicates “at least four of the other laws of nature”: there is the rule of equity according to which judges must deal equally between men; the law that no man can be a judge in his own case, and so on. These are simply criteria for what it means to act as an impartial judge. Dyzenhaus wants to make them out to be more: “the laws of nature set out what we might think of as the moral discipline of the arbitrator’s role, the equivalent of what we saw Hart call ‘judicial values’” (108). I wonder about this equivalence. For Hobbes’s laws of nature apply to all individuals in the state of nature and in foro interno: they are not exclusively meant to set up a sovereign judge. They simply describe the role of an arbitrator, a role that can be played out without the arbitrator having to be sovereign, nor does the language game of arbitration require a structure of absolute subjection, as the one that Hobbes proposes through his social contract. 

But Dyzenhaus’s key claim is that “the authority of the arbitrator comes, then, not only from the consent of the parties to abide by its decision but also from the kind of decision which makes it rational to submit to arbitration” (108). If this were the case, then veritas makes for law, not auctoritas. Exactly what Hobbes denies. “Law’s authority also comes from the fact that the arbitrator is under a duty to base its conclusions about what the law requires on sound reasons, reasons which include the laws of nature” (108). I may have missed something, but I fail to see where Hobbes states that the sovereign stands under such a duty. To play the role of arbitrator, like any role, one must abide by certain rules that define what the language game of arbitration is. Hobbes’s point, it seems to me, is that we follow the decisions of the arbitrator because the role is given authority independently of how it is exercized. We do not accept the decisions of the arbitrator on the basis of our individual judgment as to whether the arbitrator plays well or badly the role. The central Hobbesian insight is that authority is an attribute of the person who commands, not of the law that is commanded. I do not deny that if we accept Dyzenhaus’s view, that is, the Kelsenian view that only law authorizes law, then this opens up the need for a theory of political judgment.[6] But this is precisely what Hobbes wants to exclude with his idea of public conscience/reason: Hobbes’s public reason is not Kant’s or Rawls’ public reason.[7] I do not see a real possibility in Hobbes’s system for citizens to judge (in foro externo) whether what the arbitrator says is law, “really” (in truth) is law. Dyzenhaus disagrees. He thinks that “[Hobbes] clearly allowed a legal subject to challenge a law which if literally interpreted would lead to tensions with one or more of the laws of nature. The challenge is put on the basis that a judge should try to find a more reasonable interpretation of the law, one consistent with relevant laws of nature. That jus is not external to lex: ‘the law of nature, and the civil law, contain each other, and are of equal extent’” (109-110). Dyzenhaus acknowledges that there is “no legal action possible” against the sovereign; and that the sovereign is the “final judge” as to what counts as law and whether these civil laws go against the laws of nature or not. There cannot be a public contest of interpretation in Hobbes’s system, because such a contest about legal interpretation means a contest between authoritative persons who judge what is law, and this entails a divided sovereignty, which for Hobbes is as good as having none. However, on p.114 Dyzenhaus claims that judges have a lot of authority in Hobbes notwithstanding, because “judges have the authority of their sovereign to interpret its laws in the light of the laws of nature even when the ‘bare words of a written law’ appear to suggest that such an interpretation is not warranted” (114). Here Dyzenhaus threads a very narrow needle: by appealing to natural law in order to interpret civil law, or by using the legality proviso, judges in Hobbes system “do not establish a source of constraints on sovereignty which are independent of the sovereign, principles located in a morality external to law. Rather, it explains the way in which fundamental principles of legality are constitutive of sovereignty.” I retain my doubts for reasons specified above. But are the laws of nature really the “jus” that is “internal” to the lex as command of sovereign? This is the Oakeshottian premise of Dyzenhaus’s interpretation that I shall discuss in my conclusion. 

3. Oakeshott vs Schmitt: Does Hobbes care more for law or for order? 

Dyzenhaus’s re-interpretation of Hobbes is Oakeshottian in spirit. On p.118 he writes: “civil liberty has two aspects to it – the freedom to do as we desire and the conditions which make it possible for us to do as we desire. Hence such liberty – freedom under an order of public laws – makes possible liberties which require legal constitution even if the substantive ends of which they are used is at the discretion of the subjects. It is, in my view, this kind of ‘non-instrumental’ law [here citing Oakeshott/MV] one which makes possible civil interaction between subjects which Hobbes had in mind when he offered the following account of law in civil society: ‘For the use of lawes (which are but rules authorized) is not to bind the people from all voluntary actions; but to direct and keep them in such a motion as not to hurt themselves by their own impetuous desires, rashnesse or indicretion; as hedges are set, not to stop travellers, but to keep them in the way.’” (Leviathan 239-240, Tuck edition).

My problem with Dyzenhaus is not his understanding of the idea of the rule of law, nor his sympathy with Oakeshott’s conception of it. I share both. My problem is whether these features are found in Hobbes, and, even more basically, why we should wish to find them there. This wish-fulfilment seems to correspond to a strong desire to join the rule of law with an absolute conception of sovereignty, as if one without the other would be impossible. I don’t share this desire because it ends up undermining the idea of the rule of law and forgetting its difference with the rule of persons, and with that depriving it entirely of its sense. It ends up placing government over constitution. It ends up with Schmitt’s belief that, where the law recedes, the state remains. 

Oakeshott denies that laws are commands. As Dyzenhaus rehearses his view on p.118, laws are “’adverbial conditions’ of successful interaction”. A law that regulates traffic does not express the command of some representative authority that wants you to drive or not to drive. It rather says: if you decide to drive, then you ought (this is a legal ought, not a moral one) to do it “safely”, where “safely” means in accordance to the traffic rules that you were obliged to show you know and respect as a condition for being given an exemption to the general rule of not using dangerous vehicles in public, i.e., as a condition of getting a driving license in your legal community. 

I suppose one could argue: all that Hobbes meant to say is that the sovereign “commands” laws  in this sense of adverbial rules of conduct. But in that case, the Hobbesian sovereign does not actually command anything. We might as well substitute a fundamental rule that says: “the rule is to follow the rules,” in place of a sovereign. But I take it that Hobbes’s commander in chief or sovereign is not of this stamp. And the reason it isn’t is because the fundamental goal pursued by the individuals who covenant to establish the sovereign is protection. As Schmitt put it, the highest formula of Hobbes’s political thought is protego ergo obligo. Given that the sovereign’s fundamental goal is the protection of the lives of its subjects, it needs to determine who is a threat and who is not, it needs to decide who are the friends and who are the enemies (internal as much as external) to the commonwealth he personifies. In other words, its crucial preoccupation is the establishment of an order that allows for rule-following, or to determine its absence, in which case the sovereign is to decide on the state of exception and bring back order. It is sovereign in Schmitt’s sense of deciding on the state of exception. 

Dyzenhaus, instead, argues that “legal subjects are to regard themselves as under an obligation of obedience to their sovereign so long as it provides them with a peaceful stable order. But the order is not any old order. It is a legal order in which sovereign authority is legally constituted.” (120) But I take it that Schmitt, and I think Hobbes as well, would argue precisely the opposite, that making the provision of a “peaceful stable order” stand under law as opposed to a sovereign, authoritative decision backed by the monopoly of coercive power, is exactly what would undermine the consecution of such an order, and this is the fundamental reason for the legal absoluteness of the sovereign. Dyzenhaus continues: “Moreover such an order does not have any old content since it serves the subject’s interests in equality and liberty. Should subjects not be able to understand the law as serving their interests they will have reason to regard themselves as not under an obligation of obedience to their sovereign” (120). But does the imperative of protection boil down to the protection of the legal equality and legal interests of its subjects? I sincerely doubt Hobbes held this view, or at least I fail to see it explicitly stated. Hobbes instead appears to have held to the view that the perseverance in life is the summum bonum of any living thing, and the laws of nature are simply the way our reason reckons with this fact of “natural right”. And I doubt that Hobbes would have accepted the view that subjects who consider the commands of the sovereign to be discriminatory (for instance, not to respect legal equality or equality of opportunity) ipso facto have no obligation to obey their sovereign. A sovereign who accepts this is no longer a “mortal God” – he is just mortal and a danger to the commonwealth.  

Hobbes, Thomas. 2010. Leviathan. Edited by Ian Shapiro. New Haven: Yale University Press.

Hoekstra, Kinch. 2013. “Early Modern Absolutism and Constitutionalism.”  Cardozo Law Review 34:1079-1098.

Hofmann, Hasso. 2007. Rappresentanza-Rappresentazione. Parola e concetto dall’antichità all’ottocento. Milan: Giuffrè Editore.

Loughlin, Martin. 2010. Foundations of Public Law. New York: Oxford University Press.

Loughlin, Martin. 2017. Political Jurisprudence. New York: Oxford University Press.

Pettit, Philip. 2023. The State. Princeton: Princeton University Press.

Pitkin, Hannah. 1967. The Concept of Representation. Berkeley: University of California Press.

Runciman, David. 2005. Pluralism and the Personality of the State. Cambridge: Cambridge University Press.

Schmitt, Carl. 1988. Political Theology. Four Chapters on the Concept of Sovereignty. Cambridge: MIT Press.

Schmitt, Carl. 2007. The Concept of the Political. Expanded edition ed. Chicago: University of Chicago Press.

Schmitt, Carl. 2008a. The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol. Translated by George Schwab. Chicago: University of Chicago Press.

Schmitt, Carl. 2008b. Political Theology II. The Myth of the Closure of any Political Theology Cambridge: Polity Press.

Skinner, Quentin. 2005. “Hobbes on Representation.”  European Journal of Philosophy 13 (2):157-184.

Tuck, Richard. 2016. The Sleeping Sovereign. The Invention of Modern Democracy. New York: Cambridge University Press.

Vatter, Miguel. 2008. “The Idea of Public Reason and the Reason of State. Schmitt and Rawls on the Political.”  Political Theory 36 (2):239-271.

Vatter, Miguel. 2011. “The People Shall be Judge. Reflective Judgment and Constituent Power in Kant’s Philosophy of Law.”  Political Theory 39 (6):749-776.

Vatter, Miguel. 2019. “Liberal Governmentality and the Political Theology of Constitutionalism.” In Sovereignty in Motion, edited by Neil Walker and Bas Leijssenaar, 115-143. New York: Cambridge University Press.

Vatter, Miguel. 2020. Divine Democracy. Political Theology After Carl Schmitt. New York: Oxford University Press.


[1] (Tuck 2016; Loughlin 2017; Pettit 2023). See also (Hoekstra 2013).

[2] Hobbes, Leviathan, Latin edition, Book 2, chapter 26. See (Schmitt 1988) and (Schmitt 2008b). 

[3] (Hobbes 2010: 315/347). The page numbers refer to the Clarendon edition of 1909, and to the Yale University Press edition respectively. Dyzenhaus cites Leviathan from the Tuck edition. When addressing Dyzenhaus’s interpretations of particular texts, I shall refer to his citations from the Tuck edition. In text citations refer to Dyzenhaus’s chapter pages.

[4] This is the interpretation given in (Loughlin 2010: 91ff). For my critique, I refer the reader to (Vatter 2019).

[5] For discussion of the theologico-political construction of sovereignty, I refer to (Vatter 2020).

[6] I have argued just this point in (Vatter 2011). 

[7] See my discussion in (Vatter 2008).

Online Colloquium: David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. Introduction.

This online colloquium has been established to discuss David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. We begin with an introduction to the text by the author, which will be followed by responses from Miguel Vatter, Eleanor Curran, Thomas Poole, and finally a reply by David Dyzenhaus Many thanks to Cambridge University Press for supporting this colloquium.

David Dyzenhaus (University of Toronto)

Thank you to Gonzalo Bustamente Kuschel for the opportunity to have discussed in this forum the long chapter on Hobbes in my book The Long Arc of Legality: Hobbes, Kelsen, Hart. That chapter is key to my attempt to make progress in solving the puzzle of law’s authority–that law is both a matter of right and might, of both legitimate authority and coercive power. It is a puzzle because if law must be understood in the register of authority as well as coercion, it becomes difficult to understand how there could be very unjust law. How can a law be both authoritative and very unjust? 

Chapter 1, ‘The Puzzle of Very Unjust Law I’, sets out the debate on this issue between the two leading philosophers of law of the postwar period, the legal positivist HLA Hart and his critic Ronald Dworkin. I argue that the problem posed by very unjust law for philosophy of law is illustrated by the inability of both Hart and Dworkin to find resources within their theories that adequately respond to the puzzle. That sets the stage for chapter 2, ‘The Puzzle of Very Unjust Law II: Hobbes’. There, I note that mostmwill think that a chapter on Hobbes and the puzzle of very unjust law must be a very short chapter, since he is infamous for arguing that the law the sovereign makes not only can have any content, but also that the content it happens to have is by definition just. Moreover, in a well-known passage, he explicitly denies the existence of such a thing as fundamental law, so there seems no place for fundamental or constitutional principles of legality in his legal theory.[1]

But I also note that while Hobbes excludes the possibility of very unjust law, he is troubled by a category of ‘iniquitous law’, that is, a positive law which seems on its face to violate one of the many laws of nature he thought needed to be observed for the modern legal state to be maintained. 

The latter category points to an insight crucial to the whole argument of my book. Very unjust law is suspect as law because of the way it undermines the equality of the legal subjects it targets, their equality before the law. In addition, this targeting imposes a cost on legal order. As the cost rises, legal order begins to change into another kind of order altogether, one of unmediated coercive power. Hobbes in fact suggests something like immediately after his denial of the existence of fundamental law. For he says that one may still ‘very reasonably distinguish Lawes in that manner’ because such a law in ‘every Common-wealth is that, which being taken away, the Common-wealth faileth, and is utterly destroyed; as a building whose Foundation is destroyed’. [2]

Once we understand this last point, we have in place the basis for a solution to the puzzle of law’s authority. It resides in the way Hobbes properly configures the three elements of a successful theory of such authority: the fundamental principles of legality; the role of officials in interpreting such principles; and the ‘constitutionalist idea’ which combines the first two elements in the contract of authorization whereby individuals in the state of nature contract with each other to create the state and obey the sovereign individual or body who represents them.

            In my Introduction, I indicate that the idea for this argument, and indeed, for the book as a whole, is due to a remark in Michael Oakeshott’s essay on the rule of law that there is a ‘vision of a state in terms of the rule of law’ which ‘hovers over the reflections of many so-called “positivist” modern jurists’.[3]  In this essay, Oakeshott set out an account which owes most to Hobbes, though he acknowledges that its roots can be found in other early modern as well as modern theorists. Hans Hans Kelsen is the modern positivist jurist he had in mind, though in other work, he also noted an affinity to the American legal theorist Lon L Fuller’s theory of legality in which Fuller sets out the principles with which an order must comply to be a legal order, and which he suggests give rise to an ‘inner morality’ of law.[4]

This affinity gives us the clue to the right-giving basis of legal order in Hobbes, his version of fundamental principles of legality articulated  in Leviathan as the laws of nature, the ‘Science’ of which he says is ‘the true and onely Moral Philosophy’, [5]  and of which Oakeshott observes that they amount to ‘no more than an analytic break-down of the intrinsic character of law, … the jus inherent in genuine law …’ [6] In the chapter ‘Of Civill Laws’, Hobbes makes clear that legal officials, in maintaining these laws, including the activity of judges in interpreting enacted law, do the job of preserving the social contract by which subjects have agreed with each other to regard the law—the commands of their sovereign—as binding on them.[7]

Hobbes’s social contract is usually understood as a once and for all act in the state of nature and civil society is its product. But the continued existence of such a society depends on the maintenance of its civil laws which provide the framework for the subjects’ interaction with both one another and the state in an ongoing, dynamic process. Put differently, a civil society must be fully governed by law–both enacted law and fundamental principles of legality–for the ‘mutuall Relation between Protection and Obedience’[8] to obtain which is the point of the modern legal state, and without which the social contract becomes ever more friable.

            The major innovation is this chapter is my use of work done in the 1950s by JW Gough and Ernest Barker on the history of social contract thought.[9] Gough and Barker explain that in early modern thought, the social contract was conceived as two closely connected though distinguishable ideas, both of which were required to make up a complete contract: the Gesellschaftsvertrag or contract of the whole of the society to be ruled by one sovereign and the Herrschaftsvertrag which, as Barker put it, ‘in the sense of government,  is based on a contract between ruler and subjects’.[10] Barker noted correctly that with Hobbes, once the political community is formed, there is no further contract between the ‘sovereign Leviathan’ and the community so that the state is subject to ‘none of the limits of a contract of government’.[11] But he also said:

On the other hand, we have to notice (1) that in the theory of Hobbes every subject covenants with every other, in one and the same act, to form a society and to obey a government, and a subject will therefore break a sort of contract with the government (not with the ruler, but with other subjects) if he refuses to obey; (2) that in the theory of Hobbes, as it eventually develops, the ruler is bound to give protection to the lives of his subjects, and if he fails to do so they may rebel—so after all there is an implicit contract between ruler and subjects, which the ruler may himself break.[12]

            I argue that these two points amount to much more than a qualification, which requires taking into account a complicating factor. When Hobbes sets out the social contract in Leviathan, he presents it as breaking down into either two separate contracts, or, better, as two stages of one For he tells us that that when the ‘Common-wealth’–i.e. the state–is ‘instituted’ by consensus, at the same time, by majority vote, the contracting individuals decide on the form of government, which may, as we find out later, be monarchic, aristocratic, or democratic.[13]

In insisting that the form of government must be decided on in the same moment, while remaining agnostic about its form, Hobbes expresses his indifference to the kind of constitution.[14] But that indifference is not about whether there will be a constitution. There must be one, though at the abstract level of political theory, Hobbes finds more important the way in which any constitution must manifest itself in a public order of law. In this fashion, he turned the social contract into a constitutionalist idea. On the one hand, there is the governmental contract in the form of an ongoing practice which constitutes the authority of the modern legal state.  On the other hand, that practice presupposes the societal contract made by individuals in the state of nature. Put differently, Hobbes made the crucial move in developing a social contract theory for the modern legal state by turning the governmental contract into a juridical relationship between ruler and ruled, one mediated by a dynamic process of application of the law to legal subjects. 

Hobbes can then be understood as the founder of the rule-of-law tradition in modern political and legal theory. But he is also one of the founders of the modern political discourse of constitutionalism about the reciprocal relationship between, on the one hand, the sovereign person of the state and the officials who implement and interpret the law and, on the other hand, the persons who are subject to the law. The sovereign as an artificial person speaks to the subjects through law and legal language has its own grammar which requires that subjects be addressed in a way which respects them as responsible agents, each endowed with equal capacity to judge right and wrong. Hobbes’s legal theory amounts to a superior articulation of, rather than an attempt to undermine, the idea that the rule of law is a moral good. Perhaps even more important is that the rule of law is a moral good because it is a political good, one which helps to make it possible for individuals to live together on stable and peaceful terms despite their very different views of the moral good for themselves. 

This account of the role of legal order in sustaining political order subtly changes the understanding of the relationship between sovereignty and fundamental legal principles. Often debate about this relationship seems structured by a binary option, which I discuss at length in the next chapter on contemporary constitutional theory. Either the sovereign is subject to legal principles with judges as their guardian or the principles are political principles and the sovereign as the ultimate law maker is the sole judge of the content of the principles. Hobbes, on my argument, presented another option: fundamental principles are the political principles intrinsic to what I call the ‘rule-of-law project’– and should not be seen primarily as limiting sovereign authority. Rather, the principles constitute sovereign authority. They are the right-giving principles of the legal state. As such, the subordinate officials of the state—those who work at levels below the level of supreme legislative power—must concretize the law or complete the exercise of sovereignty consistently with those principles. Sovereignty, while often identified by Hobbes with the ultimate lawmaking power, is more complex than a one-off act because it involves a process of concretizing general laws until they can be applied to legal subjects consistently with the laws of nature. Such application requires, I argue in the rest of the book, the officials to be able to offer an adequate answer to the legal subject’s question ‘But, how can that be law for me?’, with the test for adequacy that the answer preserves the subject’s equal standing before the law. 


[1] Thomas Hobbes, Leviathan, (Cambridge: Cambridge University Press, 2014; Richard Tuck, ed.), 199. Hereafter, Leviathan.

[2] Ibid, 199-200.

[3] Michael Oakeshott, ‘The Rule of Law’, in Oakeshott, On History and Other Essays (Indianapolis: Liberty Fund, 1999) 129, at 175.

[4] Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 153. See Lon L Fuller, The Morality of Law (New Haven: Yale University Press, 1969, revised edition)

[5] Leviathan, 110.

[6] Oakeshott, ‘The Rule of Law’, 173.

[7] Leviathan, chapter 26.

[8] Ibid, 491.

[9] JW Gough, The Social Contract: A Critical Study of its Development (Oxford: Clarendon Press, 1957, 2nd edn.) Ernest Barker, ‘The Theory of the Social Contract in Locke, Rousseau and Hume’, in Barker, Essays on Government (Oxford: Clarendon Press, 1960, 2nd edition) 86.

[10] Ibid, 90. Emphasis removed.

[11] Ibid, 92.

[12] Ibid, note 1, his emphasis.

[13] Leviathan, 121.

[14] See Lars Vinx, ‘Constitutional Indifferentism and Republican Freedom’, (2010) 38 Political Theory 809.

New article: Thomas Hobbes’s Translation of ‘The Plague of Athens’: A First Critical Edition

Hoekstra, Kinch and Iori, Luca (2022): Thomas Hobbes’s Translation of ‘The Plague of Athens’ (Thuc. 2.47.2-54): A First Critical Edition, in: Histos. The Online Journal of Ancient Historiography 16 (2022), p. 166-213.

Abstract
The article provides a sample presentation of the critical edition in progress of Thomas Hobbes’s translation of Thucydides, Eight Bookes of the Peloponnesian Warre (London, 1629). The specimen of the edition is Thucydides’ narration of the ‘Plague of Athens’, accompanied by an introduction that sets Hobbes’s edition in its historical context, considers his method of translation, and lays out some distinctive requirements for editing an early modern text. A note on the text explains the format and the editorial principles of the specimen.

Latest Issue of Hobbes Studies

Hobbes Studies, Volume 35, Issue 2 (Nov 2022)

Articles

Book Reviews

Book manuscript workshop Hobbes on Justice

Organized by: Challenges to Democratic Representation; OZSW Study Group
in Political Philosophy

Location

University of Amsterdam
University Library, Potgieterzaal
Singel 425

All are welcome. Registration is free but required: please e-mail Eric Boot – E.R.Boot[a]tilburguniversity.edu

Program

Tuesday 6 December 2022
12:00-12:30 Welcome, with coffee, tea, and pastries
12:30-13:20 Ch. 1: Vindicating the ‘Mortal God’
13:30-14:20 Ch. 2: Justice, rights, and injury
14:20-14:50 Coffee break
14:50-15:40 Ch. 4: Distributive justice and equity
15:40-16:30 Ch. 5: Justice and property
16:30-17:00 Coffee break
17:00-18:00 Ch. 6: Justice and civil law

Wednesday 7 December 2022
09:30-10:20 Ch. 7: The right to everything as a right of war
10:30-11:20 Ch. 8: Morality among states
11:20-11:40 Coffee break
11:40-12:30 Ch. 9: Rebels, traitors, enemies, and fools

Commentators
 Arash Abizadeh (McGill)
 Robin Douglass (KCL)
 Daniel Eggers (Regensburg)
 Signy Gutnick Allen (Zürich)
 James Harris (St Andrews)
 Rebecca Ploof (Leiden)
 Meghan Robison (Montclair)
 Laurens van Apeldoorn (OU)


New article: The Name ‘Leviathan’ – or the Shadow that Fell on a Work

Waas, Lothar R. (2022): The Name ‘Leviathan’ – or the Shadow that Fell on a Work: Hobbes and Bodin, the Bible and a Commentary or Two on Job, in: Archiv für Rechts- und Sozialphilosophie, https://doi.org/10.25162/arsp-2022-0010

Description
Is the reference to the Book of Job sufficient to explain why Hobbes gave the name ‘Leviathan’ to the state he advocated? Had he not been aware of how maligned this name had been for centuries: that it not only referred to a monster, but soon became synonymous with the devil himself? – The “long shadow” that, according to Carl Schmitt, the name ‘Leviathan’ alone had cast on Hobbes’s work from the very beginning was first cleared somewhat in 2007 by Noel Malcolm’s reference to Jacques Boulduc’s Job- commentary of 1619/37. As far as the “extraneous influence” in question is concerned, however, reference could also be made to the Job-commentary of a certain Joseph Caryl of 1643, which in turn took away some of the scandalous connotation of the biblical Leviathan. The real key to Hobbes’s naming, however, may lie with Jean Bodin, with whom Hobbes shares everything that the name ‘Leviathan’ stands for in his political philosophy.

The first Italian translation of Hobbes’s Autobiographies

Hobbes, Thomas (2022): Vita di Thomas Hobbes di Malmesbury. Le due autobiografie latine, transl. and ed. by Luca Tenneriello. Milan: Mimesis.

Description
The book collects the first Italian translations of Hobbes’s two Latin autobiographies: the renowned Vita Carmine Expressa, written in 1672, and the little-known Vita, drawn up in prose from the 1660s onwards. The works have been translated and edited by Dr. Luca Tenneriello, Sapienza University of Rome. The volume shows Hobbes’s life and thought in his own words, “a crumb of Hobbes’s mind” (micam salis hobbiani), like a last will and testament for posterity.

Online Colloquium (4): Comments on Gabriella Slomp, Hobbes Against Friendship: The Modern Marginalization of an Ancient Political Concept

This online colloquium has been established to discuss Gabriella Slomp’s recent book, Hobbes Against Friendship.

We begin with an introduction to the text by the author, which will be followed by responses from Theodore Christov, Alexandra Chadwick, Nicholas Gooding , and finally a reply by Gabriella Slomp. Many thanks to Palgrave Macmillan Publishing for supporting this colloquium.

Nicholas Gooding
University of California, Berkeley
Department of Philosophy

When I told a friend and fellow philosopher that I was reading a book about Hobbes on friendship, she responded with the suspicion that Hobbes scholars were scraping the bottom of the barrel. An understandable reaction, since Hobbes hardly mentions friendship. But what Professor Slomp’s argument suggests is that my friend’s reaction betrays precisely Hobbes’s success: Though Aristotle could list as a “common opinion” the idea that friendship was more important to the polis than justice, after Hobbes, it appears that the default assumption is that friendship is irrelevant to the political theorist.

In fact, Aristotle’s account of friendship plays an important role in the story that Professor Slomp tells. Here, I want to comment on, and raise some questions about, her discussion of Hobbes’s relationship to two particular elements in the Aristotelian theory.

The first is what Aristotle called “friendship for the sake of the useful.” Aristotle suggested that “political friendship” is an instance of such, and though he used the term “political friendship” only a handful of times, later thinkers would come to recognize it as having profound importance. Within this tradition, Professor Slomp discerns two different (though “intertwined”) strands, which she labels “negative friendship” (an alliance for protection against a common enemy; chapter 3) and “positive friendship” (a cooperative partnership enabling the friends to live “commodiously”; chapter 4). On Slomp’s telling, Hobbes’s criticism is relatively nuanced (see, e.g., p. 97). He does not deny the possibility of such friendships, and he incorporates elements of both negative and positive friendship into his own political theory. Where he diverges most sharply from the tradition concerns the question of whether anything plausibly thought of as “friendship” could provide the basis of peace and stability.

Slomp’s argument here is, I think, quite persuasive. I could, admittedly, imagine feeling that her conclusion, when stated in such general terms, is hardly something anyone would have thought to deny. But what makes her discussion illuminating is its capacity to bring out, by means of a bird’s-eye survey of the vicissitudes of “political friendship” before Hobbes, that Hobbes’ silence on the topic is surprising—surprising in ways that we (belonging as we do to an intellectual world partly shaped by Hobbes) might otherwise be blind to. On this basis, it seems to me that Professor Slomp is able to offer a plausible account of the Hobbesian views that can be inferred from what looks at first like an almost total neglect of the topic.

I find myself somewhat less persuaded by her discussion of another Aristotelian idea, that of “virtue friendship”—the only genuine form of friendship according to Aristotle, since, unlike friendships for the sake of utility or pleasure, it involves loving another in himself and wishing him well for his own sake. (Slomp labels this “normative friendship.”) Here, Slomp tells us, Hobbes is uncompromising: Whereas he “made some important concessions to the narratives on negative and positive friendship,” his “theory contains a forceful…rejection of the ancient model of normative friendship…” (p. 97).

Hobbes does not explicitly discuss Aristotle’s notion of virtue friendship. So why believe that he nonetheless rejects it? An initially tempting answer might be that Hobbes—with his notoriously reductive view of human motivation—simply thought it impossible for one person to love another in himself or to wish him well for his own sake. But Slomp is not persuaded by this familiar line of thought: “Hobbes’s description of human nature does not exclude the possibility of one man considering another to be ‘a second self,’…[nor] preclude men from acting generously towards a select few, even if he rules out universal love for mankind.” (p. 112)[1]

So, Hobbes’s rationale for rejecting normative friendship does not derive from his psychology. Instead, Professor Slomp suggests that it derives from his rejection of the Aristotelian conception of virtue as consisting in a “mean” that lies between a vice of deficiency and one of excess—a view Hobbes breezily demolishes thus: “as if not the cause, but the degree of daring, made fortitude; or not the cause, but the quantity of a gift, made liberality” (Lev. 15.40; cf. Slomp p. 113). If we read this a criticism of Aristotle, however, then it does not seem to be Hobbes at his best, since it would have to depend on a superficial misreading of Aristotle’s account of ethical virtue. Aristotle explicitly says that the reason or motive for an action (“the cause”) is part of what makes it virtuous;[2] and, whatever “the mean” is, it is very explicitly not the midpoint between two extremes.[3] Professor Slomp’s discussion of this topic can sometimes give the impression that she is simply following Hobbes in his misreading of Aristotle (see p. 113); I expect that this impression is misleading, but it does raise some questions: Is she assuming that Hobbes’s carelessness or philosophical shortcomings on this score do not matter for her argument? Or that Aristotle himself need not be the target of Hobbes’s critique—that Hobbes’s purposes will be served well enough by knocking down this strawman instead?

But, granting Hobbes’s rejection of the Aristotelian account of virtue, it is hard for me to see why this, on its own, should imply a rejection, rather than a reinterpretation, of the idea of virtue friendship. After all, Hobbes does not reject the notion of virtue altogether; instead, he presents us with a view according to which the moral virtues are those qualities that lead to peace (Lev. 15.40). Is there some reason to suppose (without falling back on that crude or reductive psychology that Slomp cautions us against) that the recognition of such qualities in another could not be the basis of love, as the Aristotelian virtues supposedly were?

Professor Slomp does offer us a further justification for Hobbes’s rejection of normative friendship: “Hobbes took and voiced a position on friendship that distinguishes the moderns from the ancients—he stressed the ambivalence of friendship” (p. 114), in the sense that he saw that it could be a potential danger (not only a benefactor) to the political community.

            Were “the ancients” unaware of the ambivalence of friendship? C.S. Lewis appears to have thought so—Professor Slomp quotes him approvingly (I take it) on p. 114: “Friendship (as the ancients saw) can be a school of virtue; but also (as they did not see) a school of vice. It is ambivalent. It makes good men better, and bad men worse.” The problem is that Lewis seems to be very straightforwardly mistaken here. In fact, his claim could almost be a paraphrase of the final paragraph of Aristotle’s discussion of friendship in the Nicomachean Ethics:

Hence, the friendship of base people turns out to be vicious. For they are unstable and share base pursuits; and by becoming similar to each other, they grow vicious. But the friendship of decent people is decent, and increases the more often they meet. And they seem to become still better from their activities and their mutual correction. (NE 9.12, 1172a9-12; Irwin translation)

            Now, Professor Slomp might (perfectly correctly) point out that Aristotle is not talking about people being made worse by virtue friendship. Granted, but now there is some risk that Hobbes’s purported disagreement with the Aristotelians will devolve into a merely verbal dispute. Any friendship that is a potential “school of vice” and therefore a danger to the community will, for that very reason, not count as a “virtue friendship.” But that does not involve the Aristotelian in any substantive disagreement with the idea that the relationships normally referred to as “friendships” are politically ambivalent. 

Perhaps we can do better. The Aristotelian believes we have reason to conceptually mark off those relationships that are not ambivalent; Hobbes has no use for her taxonomy. Why? One idea that may suggest itself is that Hobbes thought that the distinction could not be drawn, because there are no independent, objective criteria of goodness or virtue; thus, if (those whom we are inclined to think of as) the vicious love each other because of qualities they themselves respect, their relationship has just as much claim on the label of virtue (or genuine) friendship as any other. But I don’t think that Slomp can avail herself of this kind of argument, since she grants that there are, for Hobbes, just such objective criteria (the laws of nature, the moral virtues).

            To echo something Alexandra says in her contribution, I do not mean to suggest that Hobbes was a closet proponent of the Aristotelian view of friendship, and I am sure that there are other reasons that we might come up with for supposing that Hobbes would be skeptical about it. Perhaps we might appeal to his rejection of natural teleology, which is certainly involved in Aristotle’s tripartite account of friendship. Or we might imagine that singling out some friendships as “virtue friendships” would involve, by Hobbes’s lights, arrogating rights to oneself that properly belong only to the sovereign. But, even if we can come up with such a story, I still find myself wondering: What does Hobbes’s silence on the matter show? That his rejection of the Aristotelian picture of friendship was so uncompromising that he could not even bring himself to speak of it, or that—in the words of one of Hobbes’s anti-Aristotelian contemporaries—he simply felt he did “not have the time to waste on subtleties of this kind”?[4]

One can imagine, after all, why Hobbes may have thought that virtue friendship was irrelevant to his concerns, and thus that he need not bother with the subtleties of refuting it. Professor Slomp points out that, rare though it was, virtue friendship was of profound political importance for Aristotle and many thinkers influenced by him. But this is because for those thinkers the moral education of citizens was a (perhaps the) central goal of the polis; virtue friendship was politically important insofar as it both contributed to and was made possible by the achievement of this goal. But once that view of the proper goal of the political community is rejected, virtue friendship immediately becomes peripheral. Hobbes has a conception of politics according to which, even if there is such a thing as virtue friendship and even if it is of paramount importance to people in their personal lives, it is anyway of no political importance. He declines to speak of it simply because he has no use for it.

That, anyway, is one alternative explanation—too baldly stated, no doubt—for Hobbes’s silence.  I would be curious to hear more about why Professor Slomp believes, instead, that it is best explained by supposing that he rejected the idea of normative friendship altogether.

Perhaps, however, there is an inevitable indeterminacy here. It is, after all, a much trickier business for an interpreter to draw inferences from a thinker’s silences than from his statements. And notwithstanding my worries and questions about the place of Aristotelian virtue friendship in Professor Slomp’s argument, it seems to me that she generally handles this tricky business with thoroughness and care. I learned a lot from her new book, and am grateful both to her and EHS for the opportunity to participate in this symposium. 


[1] I am sympathetic with this claim, but I would have liked to hear a bit more about how she understands passages that seem to be in some tension with it—for instance, the argument of chapter 1 of De Cive, which, at least at first pass, presents us with a view of men as seeking the company and friendship of others, not because we love them as such, but for the sake of our own advantage and glory. Hobbes concludes part of his argument, for instance, with a striking claim: “So it is clear from experience to anyone who gives serious attention to human behavior that every voluntary encounter is the product either of mutual need or the pursuit of glory.” (Silverthorne translation, slightly altered; emphasis added).

[2] See Aristotle’s repeated claims that, in order to be virtuous, an action must be undertaken “for the sake of the fine,” e.g., NE 4.1, 1120a24; 2.4, 1105a32; on courage specifically, see NE 3.7, esp. 1115b17-24; on generosity, see NE 4.1, esp. 1120a28-30.

[3] See NE 2.6, 1106a30-b8; 2.7, 1107a1-2.

[4] Descartes, Meditations on First Philosophy, AT 25.

Colloquium: 380 years of De Cive

The colloquium, hosted by Instituto de investigaciones Gino Germani (Buenos Aires, Argentina), is scheduled for three days, from October 4 to October 6. Attendees may participate in person or online. The full event flyer and schedule are available below.