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

/in , /by

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. 

[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

/in , /by

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

Online Colloquium (3): David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (Thomas Poole).

/in , /by

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. 

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

/in , /by

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

Eleanor Curran (University of Kent)

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

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

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

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

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

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

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

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

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

Dyzenhaus hints, (as above), that a crucial principle involved in both Hobbes’s theory and in the idea of the rule of law is that of the equality of legal subjects before the law. The most obvious reference to this in the laws of nature is in the eleventh law, Equity, according to which, ‘if a man be trusted to judge between man and man, it is a precept of the Law of Nature, that he deale Equally between them’ (Leviathan, Ch. 15). This gives us equality before the law, one of the most important rule of law principles.

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

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

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

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

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

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

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

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

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

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

/in , /by

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

Miguel Vatter (Deakin University)

Dyzenhaus on Hobbes: Oakeshott meets Schmitt

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

  1. Law as command: auctoritas non veritas facit legem

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

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

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

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

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

[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).