Archive for category: General

Laurens van Apeldoorn

Leiden University, The Netherlands.

Hobbes’s Philosophy of Religion (OUP, 2023) is a new book by Thomas Holden, Professor of philosophy at the University of California Santa Barbara. Thomas, whose main research work is in the history of seventeenth- and eighteenth-century philosophy and who has previously published a book on David Hume’s critique of moral theology, argues that Hobbes develops a stable and consistent analysis of religion that is grounded in his theory of function and character of religious language. Having the opportunity to speak to Thomas about the book, I started by asking how he came to write it. 

“One thing that drew me in is Hobbes’s rich analysis of speech acts in the philosophy of language. I wrote a paper on his treatment of evaluative speech, in which I argued that such speech is expressive and prescriptive rather than descriptive or representational. I realized that something similar also holds for religious speech. Religious language, according to Hobbes, is not about describing God and trying to say true things about this mysterious, incomprehensible, inconceivable being, but rather about expressing reverence and veneration towards God. And I realized that this treatment of religious language is more pervasive in his works than is commonly recognized, and that it helps us to resolve puzzles in his philosophy of religion. So for instance, in his notoriously ambidextrous treatment of the cosmological argument, the topic of another paper of mine, Hobbes sometimes seems to accept the existence of a first cause of the universe, while at other times he concludes that human reason is incapable of establishing this fact. It seemed to me that we can understand Hobbes’s cosmological argument as suggesting that there is a case for positing a great cause behind the humanly comprehensible world, which we ought to dignify and honour as best we can. And this practice includes our ascribing it honorific titles such as ‘good’, ‘just’, and ‘wise,’ and even ‘the first cause of the universe’.”

This seems to require treading a thin line between accepting that we have knowledge of the existence of this overwhelmingly powerful being, which is worthy of veneration, and denying that we can have knowledge of its nature. Is Hobbes successful?

“I think that Hobbes is much more consistent in what he says on religious topics than is generally acknowledged. Hobbes thinks we can truly infer that there is a great cause, a powerful being behind the humanly comprehensible world. This is his version of the cosmological argument. But this is all he thinks we can ever hope to say about this being and its attributes. All other qualities we may wish to attribute to it—that it is infinite, eternal, partless or all the other traditional theistic attributes—are purely an expression of our own reverence before this inconceivable, incomprehensible being. We therefore do not have to worry about the apparent inconsistencies between attributes like eternality and being the first cause of the universe, since these attributes are not supposed to be truth-apt in the first place. On my view Hobbes is not a theist, if theism involves having a realist, literal minded view of God. But it would be misleading to characterize him as an atheist because he does think there is a great cause which he thinks it rational to worship.”

Why would it be rational to worship this incomprehensible being if we know so little about it? 

“This is exactly the sort of question that Hume asks a century after Hobbes. Hume is willing to posit the existence of a first cause but he doubts that we have reason to revere it if we really know nothing about it. Perhaps it is not such a wonderful thing after all. I don’t see this kind of skepticism in Hobbes. Having accepted the existence of a being powerful enough to produce the world, Hobbes concludes that anything that powerful should be honoured. Hobbes concludes the same when it comes to honouring a magistrate or a prince. Even the chair of your department might deserve a little honour now and then! One analogy I draw in the book to bring out Hobbes’s position is to compare him to a 21^st century rhapsodic atheist. The rhapsodic atheist thinks that the traditional theistic conception of God is totally unfounded. Yet he recognizes that the universe did come from somewhere beyond the limits of our comprehension. And he is willing to express awe and wonder about that unknown system of forces or laws that produced this majestic creation. That is also all that Hobbes is really saying. The point where the rhapsodic atheist and Hobbes diverge is that Hobbes thinks it is appropriate to express this awe and veneration through language that conveys honour, which includes the traditional theistic vocabulary, while our modern-day atheist would find that kind of talk embarrassing.” 

The rationality of worshipping God so understood does not appear easily reconcilable with Hobbes’s conception of instrumental rationality expressed in his analysis of the moral virtues. Hobbes argues that we ought to comply with natural law because it is required for our self-preservation. Ought we to worship God for the same reason? 

“Perhaps this is something of a weak spot in Hobbes’s account. Hobbes repeatedly stresses that one has reason to honour powerful persons, the reason being that humans enjoy flattery and therefore may inflict harm and punishment if they feel insufficiently honoured. The same kind of argument is perhaps supposed to apply to God. We have reason to honour God because we hope for good things he may bring us in reward of our deference and we fear the punishment he may inflict if he feels slighted. However, this story only works given a very anthropomorphic vision of God that Hobbes repeatedly rejects. I therefore think it is more plausible to read him as acknowledging a sort of aesthetic reverence that is owed to something as powerful as the great cause of nature. Remember that there are some other goods apart from self-preservation. I think it is quite compelling if Hobbes concludes that it is appropriate to feel awe before the majesty of the cosmos and the mysterious sources of the causes of the cosmos. This aesthetic form of normativity is a non-instrumental ground for honouring that is distinct from the kind of honouring you might do to a prince or a magistrate. And there is textual evidence for this. For instance, in his analysis of petitionary prayer he ridicules the thought that God is an anthropomorphic being who would be flattered by our actions and could be moved to respond by giving us what we want. All prayer, including petitionary prayer, is simply an acknowledgment of the awe-inspiring power of God. The rationality of worship is a matter of proper respect owed to an objectively admirable kind of being.”

Does this non-instrumental form of rationality underpin the requirements of morality when Hobbes says in chapter 15 of Leviathan that the laws of nature are properly binding laws only insofar as they are God’s commands? 

“No, I think that you point to a passage where Hobbes is perhaps not completely literal minded. It is yet another case of honouring God, this time by perceiving him as the source of all order in nature, including human order as furthered by the laws of nature. To say that God has commanded the natural laws is to express veneration for him. If citizens nevertheless accept this as literal truth and they believe that these moral principles, which further their self-preservation, are expressive of the will of a supremely powerful being, Hobbes is fine with that. But he would not take it as literal truth himself.”

You extend this analysis of the nature of religious language to Hobbes’s treatment of revealed religion. Can you explain how revealed religion is to be understood as non-descriptive, expressive speech?

“In natural religion we focus on natural signs of honour, which is to say signs that are recognised as honorific by all human beings, independent of culture and convention. There are certain expressions, like ‘good’ and ‘just’ and ‘wise’ that are honorific across all societies.  There are also merely conventional and culturally specific kinds of honour, such as wearing or doffing a hat. Hobbes treats revealed religion largely as such a conventional form of honouring. Thus, ceremonial ritual practices, the contents of liturgies, the prayer books, the sacred histories in scripture are all largely conventionally honorific. Such conventions might be Protestant, Catholic, Islamic, Hindu, et cetera, and they may exist prior to the existence of the state and the sovereign. The sovereign is empowered to regulate and enforce these conventions, furthering peace and civil order by settling disagreements about parochial conventional matters. That is why Hobbes is so strikingly relaxed about non-Christian religious conventions. He is very clear in Leviathan that if you happen to live under the Caliphate and are required to deny that Jesus is the son of God, you should acquiesce. For Hobbes that really is not a big deal. Different religions are just different, culturally determined and therefore arbitrary, ways of expressing veneration for God’s overwhelming power. At the same time, Hobbes is very sincere in his view that it is appropriate to practice religion in conformity with protestant Christianity since that is how, in his culture, worship is publicly expressed.”

However, Hobbes is also willing to stretch interpretations of the Bible quite far beyond what was generally acceptable in his time.

“That is true and dictated by his political commitments. He thinks that insofar as he can gain the ear of the sovereign he can try at the margins to shape local religious traditions in the direction of peace and civil order. It is why he wishes to separate philosophy from a kind of meddling and confused scriptural metaphysics. And it is why he is sometimes willing to tendentiously bend scripture in ways that are not best seen as a sincere exegesis of the text, but rather as creative adaptations showing a sensible sovereign how Scripture can more effectively support peace. When he offers views about our obligation to practice Christianity, he is being sincere, but he treats Christianity as culturally determined and a malleable object within limits.”

You mentioned that in Leviathan Hobbes condones apostasy if commanded by one’s civil sovereign. However, in the Leviathan he also maintains that faith that Jesus is the Messiah is required for one’s salvation. And in Elements of Law and De Cive he is far less dismissive of martyrs who are unwilling to renunciate their Christian faith under an infidel sovereign. Does this mean that Hobbes thinks of the doctrine that Jesus is the Messiah as a form of veneration that is not entirely conventional?

“Well, I think that Hobbes develops two perspectives on religion. On the one hand he develops a philosophical perspective. In Leviathan—which is his settled, mature position—Hobbes is no longer particularly concerned about outward profession, arguing that martyrs who refuse to disavow their religious beliefs if required to do so by their civil sovereign are making a mistake. On the other hand, he works within a particular local tradition and addresses audiences for whom certain doctrines are nonnegotiable. Jon Parkin has a very nice book chapter, in which he shows how Hobbes promotes to his Anglo-protestant audience a minimalistic understanding of their commitments that would allow the sovereign some latitude in shaping religious doctrines, and would prevent believers from getting so caught up in the minutiae of their commitments that they are led into civil war. This is the context within which we should place Hobbes’s pronouncements on the beliefs that are required for salvation.”

Thomas, congratulations on a terrific new book and thank you for speaking with me. 

“My pleasure. And thank you for the conversation, Laurens.”

This symposium is a remarkably important debate on a remarkably important topic, perhaps the most critical in modern Hobbes studies. Dyzenhaus’s title, The Long Arc of Legality (CUP 2022), is a brilliant concept for the extraordinary trick of chance, I would argue, whereby Hobbes’s command theory of sovereignty was transmogrified into a theory of representation underpinning the legal theory of democracies. ^[1] This was due to Hobbes’s employment of corporation theory in the form of the persona ficta, a theological concept of personality most powerfully articulated by the glossators and post-glossators under the papal monarchy. ^[2]  It is the thesis of my new book, Reading Hobbes Backwards: Hobbes, the Papal Monarchy and Islam, that Hobbes only at the last moment decided to name his ‘English Politiques’ after the scaly monster of the Book of Job, as a decoy to disguise the scholastic origins of his arguments which were a burning matter. ^[3] To his own surprise, it led to the runaway success of Leviathan, and in a direction, he had not intended. For, the concept of the Crown as Corporation, a fundament of the unwritten constitution of Great Britain and the Commonwealth to this day, enshrined Hobbes as a father of representative government ever since, as David Dyzenhaus has so well demonstrated. 

Miguel Vatter, in his contribution to this symposium raises the most fundamental objection to Dyzenhaus’s thesis, alluded to also by Thomas Poole in this symposium, that it is counter-intuitive that Hobbes as a theorist of absolute monarchyshould try to pull off the hermeneutic trick of a command theory of sovereignty which is also constitutional. It is even more astonishing given that his materialist ontology necessarily ruled out non-corporeal entities like the persona ficta, on which it is based. But I think there are good reasons why Hobbes should try, as I shall try to show. Vatter gives an excellent account of how Hobbes invokes the social contract as the basis of constitutionality, so that the very act of endorsing a sovereign representative signals the endorsement of her commands, as Dyzenhaus acknowledges. This, I argue, was no academic matter. Hobbes knew that in his lifetime the failure of negotiations between the Protestant confessions at the Synods of Tonneins (1614) and Dort (1618-19) which might have prevented the appalling Thirty Years’ War (1618-48) — negotiations involving James I as the chosen peace-maker — failed precisely for want of a sovereign representative capable of holding the parties to their commitments. ^[4]

Hobbes signalled as early as 1640 in The Elements of Law, which echoes the title of Francis Bacon’s Elements of the Common Laws of England of 1630, his commitment to the Baconian programme of law reform. ^[5] Hobbes’s reasons were not academic, but deeply practical. In my piece ‘Quentin Skinner and Hobbes’s Truly Artificial Person of the State’ I tried to follow Skinner’s excellent example of reading Hobbes backwards, by considering not only the parliamentary debates that were the context for Leviathan, but also Common Law judgments and particularly those of Sir Edward Coke, otherwise Hobbes’s nemesis. ^[6]  Vatter is right that Hobbes should not have touched the persona ficta, a theological concept of personality postulating metaphysical entities. But by Hobbes’s own day the persona ficta had entered the Common Law in the form of corporation. And this, I maintain, is why Hobbes makes the otherwise indefensible assertion in The Elements of Law, that he is the first to address the state as corporation, a claim with which, we know from Leviathan, he is determined to stick. A survey of Hobbes’s reference library at Chatsworth shows that it contained no glossators or post-glossators, who also go unmentioned in Hobbes’s texts. But it did contain a complete run of Common Law Statutes and Reports and most importantly the judgments of Coke. ^[7]

No friend of the great Common Lawyer, Sir Edward Coke, Hobbes had nevertheless read him carefully, citing his famous judgment in Dr. Bonham’s Case in Leviathan, as Dyzenhaus details (p. 25ff.); and naming Coke upon Littleton as his source for the claim that Common Law represented the ‘artificial perfection of reason’ in his important chapter ‘Of Civil Laws’ (Lev., II, ch. 26, §11). Hobbes’s persona ficta incorporates a theory of authorization, which in turn incorporates a theory of guardianship dating back to its 13c. publicist, Pope Innocent IV, which concerns not only persons, but also objects like a hospital and a bridge, permitting them to become subjects of a charitable trust. ^[8]  Hobbes was clearly aware of the landmark case of Sutton’s Hospital, decided by Coke in 1612, which involved the contest by Thomas Sutton’s heirs of his bequest to the school and hospital founded by Sutton as a charitable trust in the London Charterhouse, and turned on whether or not the corporation had been legally constituted. Coke denied the claim of Sutton’s heirs that the corporation had been improperly constituted and lacked a legal personality to be the vehicle of a transfer of property; and his judgment in this case, recorded in the Reports, was a brilliant articulation of the persona ficta. Legal capacity as the basis of corporation theory until today depends on the concept of ‘legal persons’ that also dates back to the 13c. That persona ficta included a theory of authorization served Hobbes’s purposes.

As I say, even more pressing contextual reasons for Hobbes’s need for more than a command theory of sovereignty, whichI believe have never hitherto been addressed, concerned the failed negotiations leading up to the continental Thirty Years’ War (1618-48), in which James I had been fatally involved. The failure of well-intentioned efforts to bring the Protestant confessions together turned on the lack of a sovereign power capable of holding the parties to their commitments, the role these parties had vainly hoped James I could perform. The failure of the Synods of Tonneins (1614) and Dort (1618-19) resulted in the most horrific war on the European continent, where losses in terms of mortality rates, mainly for the German population, were never again reached until the final stages of WWII. 

These two aspects of the context for Hobbes’s theory: that Common Law already articulated a theory of corporation invoked in landmark cases; and that catastrophic contemporary events had demonstrated peace to turn on constitutional sovereignty that was more than sovereign command, are I believe decisive for his attempt to pull off the apparently impossible trick of combining command theory with constitutional sovereignty. His attempt has had an extraordinary afterlife in the concept of the Crown as Corporation. But as I try to show in my book, there is more to it than this. Vatter is in a sense right that Hobbes the constitutionalist is a work of fiction, and one that in his day surprised even Hobbes himself. I have taken one step further Noel Malcolm’s excellent excavations of the title of Leviathan and its source in the Jesuit and Cappuchin commentaries that Hobbes researched in Marin Mersenne’s library in Paris in the 1640s. There the scaly monster from the Book of Job is a figure for incorporation. Malcolm notes that Hobbes seems to have decided late on the title for his master-work, and that Leviathan is not deeply embedded in the text. ^[9] This is clear even from the famous frontispiece, where the banner from the Book of Job almost flies off the page of the 1651 printed edition, as if inserted late, and is missing from the presentation copy to Charles II, which otherwise depicts an amiable king with striking resemblance to Charles himself, presiding over a shired and peaceful English landscape, a perfect illustration of the persona ficta. These observations on the late advent of Leviathan as Hobbes’s title I corroborate from the correspondence, where at the point at which some 37 chapters were already completed, the work appeared to be title-less and was referred to by Payne as Hobbes’s ‘English Politiques’. By deciding on the title Leviathan when he did, Hobbes not only rode the back of generations of Jesuit and Cappuchin commentators, who to most would have been nameless, but hoped to deflect attention, I argue, from his heavy indebtedness to the Aristotelian commentary tradition, otherwise known as scholasticism. ^[10]   The fateful choice of title, which Hobbes may have regretted if we consider his remarks on the title Behemoth as ‘stupid’, led to the run-away success of Leviathan, which helped consolidate the English Protestant Reformation and to establish Hobbes’s style of empirical philosophy as the norm, as Marco Sgarbi has so successfully argued. ^[11]   Its success deflected from the scholasticism of Hobbes’s sources but also from Hobbes’s authoritative understanding of Church history and his institutional account of the rise of the papal monarchy. In the late Historia Ecclesiastica, to which he was so committed he seems to have written it twice, Hobbes, I argue, tried to claw back his reputation for seriousness, but even here was thwarted by the interpolation of the names Leviathan and Behemoth, probably by his printer, hoping to sell more copies of those works which were in-house. ^[12] Drafts for Hobbes’s extraordinarily detailed exposition in his Church History of the problem of heresy, that bedevilled the Church post-Constantine as it did in his own day, and the innumerable Councils called to resolve it, may well have dated to the 1630s. The collection in the Hardwick Hall library, which he had assisted in compiling, had all the resources he needed on the Church Fathers, histories of the Councils, as well as Jesuit and Protestant commentaries. The much neglected Historia Ecclesiastica, written in Latin and in verse to give it deliberate inaccessibility, is nevertheless very important evidence for Hobbes’s intentions in Leviathan. 

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^[1] For my critique of a similar but differently constructed theory of constitutionality, see my essay  ‘Constitutionalism and Antiquity Transformation’ (Springborg 2019), published in a special review issue of Benjamin Straumann’s Crisis and Constitutionalism, in Global Intellectual History Global Intellectual History, 4, 3 (2019), pp. 223-49,https://doi.org/10.1080/23801883.2018.1527516.

^[2] See my ‘Hobbes and the Papal Monarchy, A Neglected Subject’ (Springborg, 2021c), in Blackwell/Wiley Companion to Hobbes, Marcus P. Adams, ed., ch. 21, New York: Wiley, 2021: 348-64.

^[3] See my Reading Hobbes Backwards, ch. 5, ‘Hobbes’s Leviathan has Feet of Clay’.

^[4] See my Reading Hobbes Backwards, ch. 2, ‘James I and the Thirty Years’ War’.

^[5] See my ‘Hobbes, Civil law, Liberty and The Elements of Law’ (Springborg 2016), Critical Review of International Social and Political Philosophy, (CRISPP), 19, 1, 2016: 47–67. https://doi.org/10.1080/13698230.2015.1122354.

^[6] See my ‘Quentin Skinner and Hobbes’s Artificial Person of the State Redux’ (Springborg 2021b), Global Intellectual History, 6, 5, 2012: 732-78, online October 30, 2019.

^[7] See my Reading Hobbes Backwards, ch. 3, ‘Drafts, MSs, Letters, Recollections and Boasts: A Timeline’.

^[8] See the excellent analysis of Luka Ribarevic, ‘Leviathan and the Medieval Universitas: Hobbes’s Debt to Canon Law’. History of Political Thought, 38, 2017, 1: 92-109. For the origins of the charitable trust in the Islamic waqf, subject to technology transfer to Europe in the Crusades, see my ‘Raylor’s Revisionist Humanist Hobbes’ (Springborg 2021a),Global Intellectual History, 6, 4: 524-57; online April 17, 2019.

^[9] See my Reading Hobbes Backwards, ch. 5, ‘Hobbes’s Leviathan has Feet of Clay’

^[10] See my Reading Hobbes Backwards, ch. 1, ‘Hobbes, the Greek and Arabic Aristotle Commentary Traditions’.

^[11] See Marco Sgarbi, ‘Towards a Reassessment of British Aristotelianism’, Vivarium 50 (2012): 85-109. See also Marco Sgarbi, The Aristotelian Tradition and the Rise of British Empiricism (Dordrecht: Springer, 2013).

^[12] See my Reading Hobbes Backwards, ‘Appendix: Hobbes Shakes off Leviathan, Historia Ecclesiastica synopsis’.

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.

Thomas Poole (LSE Law School)

‘Laws Living and Armed’

Interpretation is often a matter of light and shade, of what the interpreter foregrounds and what they let slip into the background. David Dyzenhaus’s interpretation of Hobbes is no exception, though it is particularly interesting in that it can be said to read Leviathan backwards. Its centre of gravity, what it wants most to shed light on, is Chapter 26 (‘On Civill Lawes’). The chapter receives less attention than it should, particularly amongst political theorists who find its law-stuff too dry, too dusty, for their taste. Dyzenhaus sees it instead as offering the best insight into what the Hobbesian commonwealth might look like in practice. The chapter itself begins with rather formal analysis into the concept of law, but soon opens up into a wide-ranging inquiry into law in practice, handling with idiosyncratic verve questions of statutory interpretation, legal reasoning and the common law method, the composition of the judiciary and the activity of judging.

Dyzenhaus next reaches back to a much earlier part of the text, again not quite so well-thumbed – Chapters 14 & 15 on the laws of nature. It is an odd and difficult section of Leviathan, especially for those who prefer their Hobbes argumentatively grandiose and rhetorically spiky. (Even more for those who are sure he’s a legal positivist.) Dyzenhaus is inclined to take the natural law element seriously. Later transposed into the context of the commonwealth, he observes, it will provide the jus element that will structure, organise and circumscribe Lex, defined by Hobbes as the public commands of the sovereign. Natural law generates the fundamental sub-textural juristic principles that continue to gear the legal order of the commonwealth. 

On this reading, the rather austere, post-scholastic treatment of abstract principles of peace, order and good government, that in themselves do not and cannot bind, provide the seedbed for the more concrete, nuanced and often pragmatic delineation of how authority enfolds within a functioning legal order. But shedding light on these aspects of the text has implications for other elements. Specifically, the other moves Hobbes makes concerning the constitution of the state and the institution of government are understood by Dyzenhaus as supplying the ideational and formal architecture necessary to sustain the juridical structure articulated as a matter of principle in Chapters 14/15 and specified at the operational level in Chapter 26.

The strategy yields insights that go beyond challenging standard readings which fail to take law sufficiently seriously, as both concept and practice. At its core, Dyzenhaus’s case is that Leviathan offers a sophisticated political argument in favour of the rule of law (‘RoL’) state and the core legal values that are necessary to sustain it, ‘political’ in that it does not rely at least directly or in the first instance on any moral argument association with the RoL but on the argument that the instantiation of RoL principles is the best, indeed only, means of securing peaceful coexistence. The case is pressed so far in the direction of a full-fat RoL reading that Hobbes ends up looking like 20th-century liberal legalist writers such as Lon Fuller. Contrary to the accepted view, Dyzenhaus insists, ‘the Hobbesian sovereign is a legal constituted sovereign. As such, its political authority manifests itself when it rules by law. Justice resides in rule by law, in ruling in a way which lives up to jus. Moreover, rule by law entails, as we should 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.’ (99-100)

We might call Dyzenhaus’s approach to Hobbes as taking an administrative law route. In this, there is consonance again with Fuller, for whom administrative law was where the ‘rubber hits the road’ when it came to reconciling competing claims of power and authority, sovereignty and subjecthood. The strategy of focusing on adjudication as the hallmark of law in practice is equally reminiscent of the way Ronald Dworkin took on Hartian legal positivism. Making adjudication your point of entry into legal order, for Dyzenhaus as for Dworkin, is useful because it takes you straight into the thick of thing. Situated in media res, part of a set of processes, vertical and horizontal, principled and practical, adjudication in its ordinary almost banal way, is always a matter of how law is made sense of and operationalised in the determination of disputes that arise in relation to its application. 

Ideal for those who want to understand law as a dynamic system, the focus on adjudication also allows us to lean over the shoulders of officials, so to speak, to capture them at work and to imagine the conceptual matrices in which they take decisions. The focus helps Dyzenhaus normalise and demystify (I am inclined to say detoxify) Hobbes. We get very little schlock and awe – no trace here of the fearful individual cowering before a mortal God – and much more of decent officials trying to reconcile legal texts with background legal principles. But as ever, it is a matter of light and shade. While opening up some elements, Dyzenhaus’s reading obscures others. I pick out three such elements here, all related: the first within the institutional framework of law; the second on the edges; the third altogether outside it. 

1. The focus on adjudication obscures other important legal institutions, the most important of these being Legislation. It is hard not to see Legislation as the first and central institution within the Hobbesian commonwealth. Legislation correlates most clearly with Hobbes’s definition of law as the public commands of the sovereign. ‘Civil law’, he says early in Chapter 26, ‘Is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right and Wrong; that is to say, of what is contrary, and what is not contrary to the Rule.’ He goes on directly to discuss the Legislator, ‘he that taketh the Law’. The judges come a fair bit later; and even there much of the point is to stress their inferiority to and dependence on the (sovereign as) Legislator.

The reason for the primacy of Legislation is not technical but goes to the heart of the matter. The point of the Commonwealth, as Hobbes sees it, is to provide an authoritative and determinative framework for action against a background where no alternative is available. Sure, there can be all sorts of other normative stuff going on, institutionally and extra-institutionally, including customary law and common law, but what matters in the end is the utter clarity of the norms that really count and the normative authority underpinning those primary norms. Anything that might water this down, that threatens to induce ambiguity or instability in either the norms themselves or the authority structure that supports them, must be eliminated. That most certainly includes subordinate legal officers, including judges tempted to wander off piste in their search for background values at odds with the legal text. 

There is the recurring image of the sovereign as Judge in the text, certainly. But this comes downstream from the image of the sovereign as Law-Maker. The frontispiece image of the sovereign wielding the sword gets picked up in one of my favourite passages in the text. For the sovereign alone, Hobbes writes, there ‘can not be any knot in the Law, insoluble; either by finding out the ends, to undoe it’ – i.e. by interpretation – ‘or else by making what ends he will, (as Alexander did with his sword in the Gordian knot) by the legislative power’ – i.e. by authoritative stipulating backed by force – ‘which no other Interpreter can doe’. We get a similar glimpse into Hobbes’s essentially un-Fullerian stance on law, its material support and social purpose, in a characteristically direct passage in the Dialogue: ‘By the Laws, I mean, Laws living and Armed.’ My sense is that Dyzenhaus gets the first of these core elements but glosses over the second. 

2. Dyzenhaus gravitates towards the most ‘normal’ elements within the legal order of the Commonwealth. But that is only part of the story. Hobbes in clear that in order for the whole thing to get off the ground the sovereign needs sufficiently large resources to cow potential dissidents and dissenters. While Hobbes recognises perhaps more than many commentators acknowledge the importance of law in accruing and, especially, sustaining this power base, he is clear that legal power does not exhaust the range of powers at the sovereign’s disposal. The bottom line is, the sovereign gets to choose. (Which is not to say that in exercising this choice anything goes.) The sovereign can go through law; but it can also go through power. In fact, the sovereign ought to take that last route where to do otherwise might plausibly threaten the stability of the regime. 

The text itself could hardly be clearer on this point. There is an important passage in Chapter 21 where Hobbes makes it clear that the sovereign, when exercising his normal legal power, is open to litigation as of right from subjects on a whole range of civil and public law matters. But the same passage also shows that extra-legal pathways are possible – ‘by vertue of his Power’, as opposed to ‘by force of a former law’ – and presumptively legitimate. ‘But if he [the sovereign] demand, or take any thing by pretence of his Power; there lyeth, in that case, no action of Law’. Other than via these somewhat coded means, Leviathan itself does not refer much to prerogative, a suite of powers on the edge of the legal framework but which evidently includes in this context ‘absolute’ or extra-legal powers available to the sovereign alone. Hobbes is not so reticent elsewhere, though. He emerges – as one would expect – as someone all in favour of the forthright and determined, but not glib, imprudent or self-serving, exercise of prerogative powers where the situation calls for it. Indeed, his beef with Charles I as expressed in Behemoth is that he should have gone harder and more consistently down this route when he had the chance, before events overwhelmed him. The sword can represent the legislative function; but it is also, indeed at the same time, code for the sheer might that the sovereign is able to wield.

3. There is a pay-off to emphasising the more normal elements within Leviathan, no doubt. But to what extent does Dyzenhaus give us a sanitised version of Hobbes? This seems an odd thing to say about a legal philosopher who has spent more time than anyone thinking about very bad laws and wicked legal systems. To be clear, there is no obligation on him or anyone else to play up the more vivid Sturm und Drang parts of the text; and I definitely don’t want to see more of the vaguely adolescent posturing about the imminence of violent collapse that mars so much critical legal scholarship. But I do think something material can be lost in an interpretation that skirts the base elements that fuel Hobbes’s political vision. Fear. Struggle. The unbearable hardness of being. The desire to be left alone and the need for society. The simultaneous need for mastery and detestation of masters. And, again, fear. 

All this matters not just in that it gives an undeniable richness of texture and tone to the socio-psychology that is woven through Hobbes’s political thought. But also because it conditions the nature of the never-ending sequence of trade-offs that are needed to keep the political enterprise going. Above all, it entails a clearsighted sense of what ultimately counts. It is peace that matters. And for that you need order first, law second, rights a distant third. The costs of getting any of it wrong are so steep in Hobbes’s estimation that anyone who is not a fool (or a late 20th-century liberal legalist) would pay almost any price to avoid it. What is missing in the end from Dyzenhaus’s reading of Hobbes is the sense of political life being lived on the edge, under perpetual conditions of siege, where even the peace can be claustrophobic. 

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 20^th 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 legem, auctoritas 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.

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^[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).