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

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.