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

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

David Dyzenhaus (University of Toronto)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2] Ibid, 199-200.

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

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

[5] Leviathan, 110.

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

[7] Leviathan, chapter 26.

[8] Ibid, 491.

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

[10] Ibid, 90. Emphasis removed.

[11] Ibid, 92.

[12] Ibid, note 1, his emphasis.

[13] Leviathan, 121.

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

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

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

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

Hobbes Studies Cover

Latest Issue of Hobbes Studies

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


Book Reviews

Hobbes Face

Book manuscript workshop Hobbes on Justice

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


University of Amsterdam
University Library, Potgieterzaal
Singel 425

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


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

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

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

Online Colloquium (5): Reply to Critics by Slomp

This online colloquium has been established to discuss Gabriella Slomp’s recent book, Hobbes Against Friendship. We begin with an introduction to the text by the author, which will be followed by responses from Theodore Christov, Alexandra Chadwick, Nicholas Gooding , and finally a reply by Gabriella Slomp. Many thanks to Palgrave Macmillan Publishing for supporting this colloquium.

Response to Alexandra Chadwick, Theodore Christov, and Nicholas Gooding.

Gabriella Slomp, University of St Andrews

I wish to express my gratitude to Gonzalo Bustamante and the European Hobbes Society for organizing a symposium on my book on Hobbes Against Friendship; I also wish to thank Alexandra Chadwick, Theodore Christov, and Nicholas Gooding for their very interesting comments and challenging questions.

To begin with, I will consider Chadwick’s typically insightful remarks and address two questions that she raises, one about natural sociability and the other about Hobbes’s model of friendship.

Regarding ‘natural sociability’, Chadwick draws attention to my claim that ‘Hobbes ruled out natural sociability; however, he maintained that men can and ought to become sociable.’ She enquires about the difference between Aristotle and Hobbes- if there is a ‘natural’ capacity for sociability (given man can be sociable), then where do we draw the line between this and ‘natural’ sociability?

First let me elucidate my claim: on the one hand, Hobbes tells us that by nature men are unsociable – a claim that is particularly clear in De Cive where we read that ‘By nature, then, we are not looking for friends but for honour or advantage from them’[1]; on the other hand, Hobbes maintains that men ‘ought’ to be sociable (sociability is ‘the sum’ of the laws of nature) and ‘can’ become so by training (‘ought’ for Hobbes depends on ‘can’). On my reading, Hobbes is very keen to highlight the difference  between ‘natural’ versus ‘acquired’ behaviour: men are naturally unsociable but canbecome sociable through education and discipline.

Having said this, I agree with Chadwick that on sociability ‘articulating the difference between the two [Aristotle and Hobbes] becomes trickier once we reject the caricature of a Hobbesian man as an isolated, exclusively self-interested individual.’

Chadwick also raises an important question about the triadic model of friendship that I attribute to Hobbes vis-a-vis the triadic model of friendship that I (and others) associate with ancient and medieval political thought. The difference between the two models is significant and here I want to make another attempt to clarify it. The ancient and medieval model of friendship was anchored to an entity – the good, the beautiful, God – that men did not invent but discovered. This entity regulated the relationship between friends and set limits to what they could ask and expect of each other. In contrast, according to my interpretation, the Hobbesian model of friendship is fastened to an entity created by man – the state – that will regulate partial societies and affiliations among citizens in a way that strengthens peace. Although for Hobbes the Leviathan is accountable to God and its decisions are not arbitrary but informed by the laws of nature, nevertheless the Leviathan’s criterion of selection is not a Christian principle, but a secular value: the safety and wellbeing of the commonwealth. Building on Chapter 22 of Leviathan, I argue that the state will foster those partial societies that can become the ‘muscles’ of the commonwealth and suppress those affiliations that are cancerous and can undermine its health. In this respect too Hobbes has been influential: although some contemporary theories of civic friendship (e.g. Schwarzenbach) claim to reject Hobbes and to put forward a revised and updated Aristotelian model of civic friendship, in fact they are adopting the Hobbesian secular triadic model of friendship.

 Next, I want to thank Christov for his engaging reflections on natural persons, international relations, and the modern self. Here I limit myself to clarify my position on two topics.

First, international relations. In the book I consider two separate narratives on how friendship works among political entities or states – the narrative that stretches from Plato’s Lysis to Carl Schmitt, according to which all friendship is a response to enmity (I call this ‘negative friendship’) and the narrative from Cicero to the Scottish Enlightenment according to which friendship is the engine of economics and of ‘commodious living’ (I call this ‘positive friendship’). I argue that Hobbes’s discussion of leagues, confederacies, alliances, and factions resonates with themes of the first narrative, while his discussion of financial corporations and colonies shares themes with the second. Ultimately I show that, according to Hobbes, leagues and alliances work in international relations, as do financial corporations and cultural networks; in contrast, neither negative nor positive friendship are effective in natural conditions. This difference undermines the famous correspondence between international relations and the state of nature.

Second, Christov eloquently reminds us of Hobbes’s new science of politics and of the concept of the modern self. I wholeheartedly agree with Christov that Hobbes’s contribution to modern political thought is immense, but at the same time I concur with the growing number of scholars who maintain that Hobbes looked backward in order to move forward. I agree with Christov that there are significant differences between ancient and modern theories and practices of friendship; it is interesting though that both Aristotle and Hobbes discussed friendship between equals and unequals and suggested that friendship can be an equalizer. Contemporary supporters of the revival of friendship point out that the friendship approach is ‘horizontal’ rather than ‘vertical’ and looks at people and states as they ‘stand together’ rather than how they ‘stand over each other’.

Last but not least I must thank Nicholas Gooding for his very thoughtful critique. I will organize my response into two parts: (i) clarifications and (ii) grounds for healthy debate.

To begin with, a few clarifications.

First, Gooding raises the topic of the ambivalence of friendship and asks whether this was in fact under-appreciated by the ancients, as my quotation from C.S. Lewis would seem to suggest. Rather, my argument in the book is (or tries to be) that a range of ancient authors considered the ambivalence of friendship and highlighted the connection between friendship, corruption, and other evils. However, I conclude – following Cicero – that the prevailing view in Greece and Rome was that a relationship that entailed immorality could not be regarded as amicitia. The idea that ‘only good men can be friends’ is attributed to the ancients by Hobbes in Anti-White.

Second, I agree with Gooding that Hobbes ‘has no use for’ the Aristotelian taxonomy, but from different reasons from those he states. Rather than the absence of objective distinguishing criteria that causes the taxonomy to be ‘of no use’, it is the existence of a separate criterion – namely, the effect of friendship on peace – that renders the Aristotelian taxonomy unfit for Hobbes’s purposes. From an Hobbesian perspective, although conspirators may be more generous with their friends than merchants are with theirs, nevertheless the selfless friendships of the former can damage the commonwealth more than the self-interested friendships of the latter.

Third, in my book, I intended not to selectively cite from Hobbes and instead include the range of his views on virtue. I agree with Gooding that one cited passage (where Hobbes discusses ‘the cause’ of virtue) does Hobbes little service; however, what I tried to convey in this part of the book was  that – on balance- Hobbes emphasizes  ‘the effect’ or ‘impact’ of actions on peace and the wellbeing of the commonwealth. Indeed, I have been a long-standing supporter of the view, expressed forcibly by S.A. Lloyd,[2] that Hobbes disconnected virtue from the pursuit of individual excellence and fastened it to peace.

Finally, Gooding makes a couple of statements that are grounds for healthy debate. For instance, Gooding suggests that some views by Hobbes on Aristotelian virtue contain ‘misreading’ or ‘carelessness’ or ‘philosophical shortcomings’. My view is different: Hobbes was very well-acquainted with Aristotle’s work and had an above-average capacity to understand Aristotle’s politics and ethics. However, when dealing with Aristotelian ideas Hobbes could not help being polemical in Carl Schmitt’s sense of the word. As Carl Schmitt maintained that the definition of political terms is part of a theorist’s political struggle, so Hobbes seemed to think that a new definition of virtue – and the vilification of the Aristotelian meaning – was part and parcel of his battle against the Aristotelians.

Next, Gooding maintains that Hobbes marginalized friendship because ‘he had no use of it’. I beg to differ because in a Review and Conclusion to Leviathan Hobbes draws the attention of the reader to the importance of ‘a constant Civill Amity’ within his commonwealth. Hobbes acknowledges the difficulty of developing civil amity, but rejects the idea that it cannot be attained; in his argument, education and discipline are the means of its development. On my reading, the engine of Hobbesian civic friendship is neither love nor custom; rather it is the citizens’ shared understanding of the function of authority and their commitment to obey the law.

I hope to have answered some of the questions raised by my three readers. 

[1] ‘The majority of previous writers on public affairs either assume or seek to prove or simply assert that Man is an animal born fit for Society …. This Axiom, though very widely accepted, is nevertheless false; the error proceeds from a superficial view of human nature. … For if man naturally loved his fellow man … there is no reason why everyone would not love everyone equally as equally men … (On the Citizen, Part I, 1.2, 21–22)

[2] ‘The Laws of Nature articulate moral virtues, and moral virtues are the dispositions that create and sustain civil society, that is the commonwealth-based form of life requisite for peaceful, sociable, and comfortable living. Rational excellences that contribute to the interests of the agent but not reliably to the interests of the collective … are neither moral virtues nor among “the” Laws of nature Hobbes enumerates.’ (Lloyd, S.A. 2009. Morality in the Philosophy of Thomas Hobbes. Cases in the Law of Nature. Cambridge: Cambridge University Press, p. 141)

Archiv für Rechts- und Sozialphilosophie_Cover

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

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

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