New article: “Are Hobbesian States as Passionate as Hobbesian Individuals?”

Rilla, Jerónimo (2023): Are Hobbesian States as Passionate as Hobbesian Individuals? In: The Review of Politics, 85 (3), pp. 285 – 303.

Description

This article deals with the possibility of ascribing passions to states in Thomas Hobbes’s political theory. According to Hobbes, the condition of sovereign states vis-à-vis one another is comparable to that of individuals in the state of nature, namely, a state of war. Consequently, the three causes of war (competition, diffidence, and glory) identified in chapter 13 of Leviathan could also be relevant to interstate relations. Since these war triggers are mainly passions, one could presume that state action is motivated by passions as well. Some argue that it is just a figurative way of speaking. Others claim that the passions of war affect only sovereign rulers. I explore an alternative answer based on the ability of sovereigns to direct the preexisting passions of their people.

Awe and wonder for this majestic creation: interview with Thomas Holden

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 21st 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.”

New book: Hobbes and the Democratic Imaginary

Holman, Christopher (2022): Hobbes and the Democratic Imaginary.

Description
At a time when nearly all political actors and observers—despite the nature of their normative commitments—morally appeal to the language of democracy, the particular signification of the term has become obscured. Hobbes and the Democratic Imaginary argues that critical engagement with various elements of the work of Hobbes, a notorious critic of democracy, can deepen our understanding of the problems, stakes, and ethics of democratic life. Firstly, Hobbes’s descriptive anatomy of democratic sovereignty reveals what is essential to the institution of this form of government, in the face of the conceptual confusion that characterizes the contemporary deployment of democratic terminology. Secondly, Hobbes’s critique of the mechanics of democracy points toward certain fundamental political risks that are internal to its mode of operation. And thirdly, contrary to Hobbes’s own intentions, Christopher Holman shows how the selective redeployment of certain Hobbesian categories could help construct a normative ground in which democracy is the ethical choice in relation to other sovereign forms.

Reaction to Online Colloquium (5): On David Dyzenhaus, The Long Arc of Legality, reply to Dyzenhaus and Miguel Vatter, by Patricia Springborg

This symposium is a remarkably important debate on a remarkably important topic, perhaps the most critical in modern Hobbes studies. Dyzenhaus’s titleThe 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


[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’.

Online Colloquium (4): Reply to Critics by D. Dyzenhaus

Let me start by again expressing my deep thanks to Gonzalo Bustamente Kuschel and to the European Hobbes Society for the opportunity to respond to three excellent commentaries on the chapter devoted to Hobbes in my The Long Arc of Legality: Hobbes, Kelsen, Hart.  And I’m of course most grateful to the three scholars who took the time to consider my arguments. I will in what follows address only what I take to be the central points in each, as an attempt to respond fully to the detail of their arguments would consume too much space.

In her very sympathetic reconstruction of my argument, Eleanor Curran poses one important question: in my account of the legitimate authority of law, why do I choose all of Hobbes’s many laws of nature as providing the legitimating fundamental principles of legality ‘rather than 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’? She adds that Hobbes ‘reinforces his commitment to equity, … when he expands on the duty of the sovereign to procure the “safety of the people”’. 

One answer is that I slipped up. In my very first paper on these themes, I was much more careful. I argued that the laws of nature fall into three main groups: the first group’s function is to facilitate exit from the state of nature; the second has to do with the moral psychology of both legislators and subjects which is necessary to sustain a properly functioning legal order; and the third has to do with the formal institutional requirements of such an order, akin to Lon L. Fuller’s principles of legality.[1]  These distinctions are unfortunately at best implicit in my chapter on Hobbes and I focus mostly on laws that fall into the second group. 

 A better answer is that in singling out the ninth law against pride, which I had placed in my second group, and in mentioning the connection to the sovereign’s duty to procure the safety of the people, Curran also points to the difficulty in maintaining these distinctions. In this regard, I suggested in that paper that the distinction between the third and the second groups is not very sharp. Law eleven on equity is in the third group but, as we can see from Curran’s observation, it requires the state of mind signalled in the law against pride. Moreover, laws in groups two and three are united by the fact that their observance is clearly required to sustain civil society, even if the groups have different functions. I also pointed out that distinction between the first and second groups is hardly sharp. When Hobbes tells us in chapter 15 that the ‘Lawes of Nature are Immutable and Eternall’, it is laws in the second group together with law three (people must perform their agreements) that he specifically names, saying that their violation could ‘never be made lawfull. For it can never be that Warre shall preserve life, and Peace destroy it’. 

In my view, the way the groups interact with each other is important, not only for Hobbes scholars, but also for contemporary political and legal philosophy;  and I’m most grateful  to Curran for prompting me to return to these issues since they are central to my current project, which is to elaborate a ‘political sociology of obedience’. At various points in The Long Arc of Legality, I suggest that philosophy of law needs to take seriously the idea that one of the existence conditions for legal order is that there is a ‘habit of obedience’ on the part of those subject to law, the idea put forward by John Austin, the nineteenth century legal positivist.[2] However, I depart from Austin, and from his twentieth century successor H.L.A Hart, in arguing that the habit entails that the subjects comply with the law not primarily because they fear sanctions for non-compliance. Rather, they accept the law as authoritative, albeit that their acceptance is for the most part tacit. 

Note that this is not the tautology that the legal order and its laws are accepted because they are accepted. They are accepted because they are acceptable, notably, because particular laws do not have a content that radically undermines the formal equality before the law of those subject to it and because the laws have been enacted, implemented, interpreted and enforced in accordance with the relevant laws in group three. Moreover, accordance bears on content in that the constraint on particular laws is exercised by legal form. 

In making this argument, I take inspiration from Bernard Williams’s ‘political realist’ account of legitimacy and what hecalled the ‘Hobbesian question’ of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’.[3]This, Williams said, is the ‘first’ political question because ‘solving it is the condition of solving, indeed posing, any others’.[4] But what Williams failed to appreciate is that for Hobbes the solution requires putting in place a legal order that functions in accordance with the laws of nature. Leviathan sets out a theory of political order as legal order, since a political order is characterized by authority relationships in contrast with relationships of unmediated coercive power and mediation is achieved by law. That mediation makes it possible for subjects to maintain the habit of obedience and to have the right kind of mindset towards the law of their legal order.

Of my two other commentators, Miguel Vatter is the more sceptical of my effort to cast Hobbes as the founder of our idea of the modern legal state and its commitment to the rule of law. He offers a Schmittean antidote to my own reading, which is, as he rightly notes, heavily influenced by Michael Oakeshott. I should note immediately my disagreement with Vatter’s claim that Carl Schmitt was one of Hobbes’s ‘most acute interpreters’. Schmitt pays almost no attention to Hobbes’s arguments, let alone interprets them, as he is not himself in the argument business. Rather, his work is a sustained polemic against democracy, liberalism and the rule of law, and he uses, better, abuses any resources he can find to that end. 

Consider the sentence from chapter 26 of the Latin Leviathan which Vatter, following Schmitt, highlights: auctoritas non veritas facit legem. ‘Authority not truth makes law’ is Hobbes’s lapidary translation of the longer thought in the English Leviathan: ‘The Authority of writers, without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true’. But Hobbes’s observation is a commonplace in legal theory, no more than the claim that Hart was to make centuries later that it ‘could not follow from the mere fact that a rule was morally desirable that it was a rule of law’.[5] Schmitt, in contrast, wants to turn this rather banal point into his reductive claim that all there is to law is power, that, to use Vatter’s own words, ‘adherence to previous law is  merely the sovereign continuing to do as he pleased before to do’. If that were right, Hobbes was mistaken to include the material on which my chapter focuses–chapter 15 (laws of nature), chapter 26 (civil law), chapter 27 (punishment), and chapter 28 (punishment). In addition, there is much in the other chapters along the same lines. 

All in all, Vatter goes wrong when he summarises my argument as that ‘commands have the force of law because sovereignty has a legal form’. Rather, it is that if a powerful entity wishes to rule by law, its commands must take legal form. That’s undeniable if only because it is a tautology, though one with significant implications. For in Hobbes’s hands, as in Fuller’s after him, there is a lot packed into what’s undeniable, as twentieth century legal positivists such as Hart and Joseph Raz acknowledged when they accepted Fuller’s account of legality, though they tried to resile from the implications of such acceptance by reducing Fuller’s principles to criteria  of efficacy, an attempt which I argue in The Long Arc of Legality undermines their endeavour of providing a theory of law as a matter of authority, as a matter of right as well as might. 

Fuller rightly argued that the principles establish a bond of reciprocity between ruler and subject, precisely Hobbes’s relationship between protection and obedience which Vatter emphasizes towards the end of his piece.[6] Vatter says, however, that he ‘sincerely’ doubts that Hobbes held the view that the ‘imperative of protection boil[s] down to the protection of the legal equality and legal interests of its subjects’ and he suggests that Hobbes never explicitly states this. But here Vatter passes over the many passages in Leviathan to this effect, for example, when Hobbes says at the beginning of chapter 30 that in his theory the ‘safety of the people’ does not amount to a ‘bare Preservation, but also all other Contentments of life, which every man, by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe’. 

In his main challenge to my position, Thomas Poole does not seek, like Schmitt and Vatter, to strip Hobbes’s account of the modern legal state of its complexity, but rather to show that it sits side by side in Hobbes’s state theory with the prerogative power of the sovereign to do as it will. Poole’s critique in this respect seems to me to trade on an ambiguity between saying that might as well as right is necessary to maintain a state and claiming that prerogative in the sense of legally unlimited might is always a legitimately available resource for the sovereign. 

The first proposition poses no problem for my account since it is completely consistent with acknowledging that the sword of the sovereign, its monopoly on legitimate force, is as necessary to maintain the modern legal state as is the acceptance by a large proportion of its subjects of its authority as legitimate. (It is also by the way consistent with Hobbes’s observation in the Epilogue to Leviathan that all states have their origin in some act of illegitimate force.)  

My account is, however, inconsistent with the second proposition, as it entails that every state is what Ernst Fraenkel in his analysis of the Nazi state termed a ‘dual state’: on the one hand, a ‘normative state’ in which matters are ruled by law, on the other, a ‘prerogative state’, in which officials do as they please, including in regard to any matter that would otherwise be dealt with in the normative state. As a result, Fraenkel argued, there was no rule of law in Nazi Germany and he regarded Schmitt, whom he detested, as the ideological architect of the dual state.[7]

Now Poole is right that Hobbes at times in Leviathan, and also elsewhere, suggests that the sovereign may when necessary act on the basis of its power outside of the law. However, as I argue at some length in my chapter, such suggestions are incommensurable with Hobbes’s general understanding of the modern legal state and so should be regarded as mistakes.  

Poole’s remaining criticisms are, first, that he charges me with overemphasizing adjudication and judges when Hobbes’s focus is on the sovereign legislator and, second, he complains that I miss the sense in Hobbes of ‘political life being lived on the edge’. 

I plead not guilty to the charge. To the extent that I gave this impression, it is because Hobbes himself did not live in a time when legislatures were enacting barrages of statutes and there was hardly anything like our modern administrative state in existence. Hence, Hobbes himself focuses on the role of judges in the modern legal state to elaborate his account of the interaction of enacted law with the laws of nature. But, as I argue at several points in the book, philosophy of law goes wrong when it focuses too much on the role of judges in legal order and Poole acknowledges this argument when he describes my approach to Hobbes as taking ‘an administrative law route’. 

When it comes to political life ‘on the edge’, Poole says that it is above all ‘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’. I am confident that I’m the late 20th-century liberal legalist in this quotation and that perhaps makes me a fool. But I agree that it is above all peace that matters, as I suggested above in nailing my colours to the mast of Williams’s Hobbes-inspired political realism, and, as I also suggested, for Hobbes the order of civil society requires a legal order. Moreover, in such an order subjects will have legal rights which, as Ronald Dworkin explained, are the kind of political rights we have on demand from our adjudicative institutions.[8] While Poole is correct to associate Dworkin’s legal theory with the kind of liberal legalism which focuses on judges as the guardians of constitutionally entrenched rights, the point about legal rights is not tied to such a theory. Adjudicative institutions include all the institutions of legal order in which officials are under a duty to respond to the subject who demands that the official produce a legal warrant or justification for an official act and legal rights are just the rights that the subject is entitled to in virtue of the law relevant to the justification. It is for this reason that I try to make central to legal philosophical inquiry the subject’s question ‘But, how can that be law for me?’  

I certainly hope that it is not foolish to suppose that this kind of order can be maintained. After all, it keeps us from away from ‘the edge’ to which the forces of the right in the United Kingdom, as elsewhere, seem determined to push us. 


[1] David Dyzenhaus, ‘Hobbes and the Legitimacy of Law’ (2001) 20 Law and Philosophy 461, at 464.

[2] John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law (London: John Murray, 1885, 5th edn.), vol. 1, 220-1.

[3] Bernard Williams, ‘Realism and Moralism in Political Theory’, in Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument ((Princeton: Princeton University Press, 2005; Geoffrey Hawthorn, ed.) 1.

[4] Ibid.

[5] [5] HLA Hart, ‘Positivism and the Separation of Law and Morals’, in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49, at 55.

[6] Fuller, The Morality of Law, 39-40.

[7] Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford: Oxford University Press, 2017).

[8] Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Belknap Press, 2011), 407