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Hobbes and the Legitimacy of Law Author(s): David Dyzenhaus Source: Law and Philosophy, Vol. 20,

Hobbes and the Legitimacy of Law Author(s): David Dyzenhaus Source: Law and Philosophy, Vol. 20, No. 5 (Sep., 2001), pp. 461-498 Published by: Springer

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DAVIDDYZENHAUS

HOBBESAND THELEGITIMACYOF LAW1

(Accepted 13 February2001)

ABSTRACT. Legal positivism dominatesin the debatebetween it and natural law, butclose attentionto theworkof ThomasHobbes- the"founder"of the posi- tivist tradition- reveals a versionof anti-positivism with the potential to change thecontoursof thatdebate.Hobbes'saccountof law ties law to legitimacythrough the legal constraintsof the rule of law. Legal orderis essentialto maintaining the orderof civil society; and the institutionsof legal orderare structuredin such a way that government in accordancewith theruleof law is intrinsicallylegitimate. I focus on Hobbes's neglected catalogue of the laws of nature. Only the first groupgets much attention.Its functionis to facilitateexit from the state of nature, an exit which Hobbes seems to make impossible. The second group sets

out the moral psychology of

a properly functioning legal order.The third sets out the formal institutional

requirements of such an order.The second and third groups show

concernedwith solving an insoluble problem of exit from the state of naturebut with the constructionof legitimate order.Because a sovereign is by definition

one who governs throughlaw, Hobbes's absolutismis constrained.Government

both legislators and subjects necessary to sustain

Hobbes not

in

accordancewith the rule of law is governmentsubject to the moralconstraints

of

the institutionsof legal order.

Legalpositivism dominates today in the great debatein legal philos- ophy between it andnaturallaw. I will argue thatclose attentionto the workof ThomasHobbes- generallyregarded as the founderof

the

potential to change the contoursof thatdebate. In HLA Hart's contemporaryversion, positivism puts forward two central theses. The Separation Thesis holds that there is no necessary connectionbetween law and morality. The Identification

positivist tradition- revealsa versionof anti-positivism with the

1 For comments and discussion, I thankEd Andrew, Daniel Brudney, Evan Fox-Decent, Cheryl Misak, Mark Murphy, Arthur Ripstein, Michel Rosenfeld, andthe studentsin my graduate seminaron Hobbesin the spring of 2000.

a Law and Philosophy 20: 461-498,2001.

? 2001 KluwerAcademicPublishers. Printedin theNetherlands.

462

DAVIDDYZENHAUS

Thesis holds that the law of a legal order is its positive law, law whose contentcanbe determinedwithoutresortto moral argument.2

the hallmark

of the positivist tradition.But he also argued thatthe traditionhad

gone wrong in several respects, including in its idea that law is the product of an "uncommandedcommander", of a legally uncon- strained sovereign. Hart argued that that idea fails to account for the fact that every sovereign who wishes to rule through law is constrainedin the followingway.3 The sovereign hasto comply with the fundamentalrule of the legal order- the "ruleof recognition" - which stipulates when judgments aboutthe common good will be recognised as law. Hobbes is not only supposed to be the founder of the posi- tivist tradition, but the idea of the sovereign as uncommanded commanderis centralto his understanding of law. However, I will argue thatHobbes offers an accountof law which ties law to legit- imacy through the legal constraintsof the rule of law. For Hobbes, legal order is essential to maintaining the order of civil society; and the institutionsof legal order are structuredin such a way that government in accordancewith the rule of law is intrinsically

legitimate.4

Hart saw these two theses, especially the first, as

2 Both of these theses are articulatedin H.L.A. Hart, "Positivismand the

Separation of Law and Morals," reprinted in his Essays in Jurisprudence and Philosophy(Oxford: Clarendon Press, 1983), pp. 49-87 andin Hart, The Concept of Law (Oxford: Clarendon Press, 1961). In a posthumouslypublished "Post- cript" to the second edition of the latterwork, Hart qualified the second thesis by joining the "incorporationist"camp within legal positivism; see Conceptof Law (Oxford: ClarendonPress, 1994), pp. 250-254. I will not go into this issue

here

Oxford Journal of Legal Studies20 (2000), pp. 703-722.

3 See Hart, "Positivismandthe Separation of Law and Morals,"pp. 58-60 and The Conceptof Law,chap. 6.

but I explore it in detail in "Positivism's Stagnant Research Programme",

As I will indicate later, Hobbes'sclosest ally in contemporary debatesis Lon

L. Fuller.See Fuller, The Moralityof Law (New Haven:Yale UniversityPress, rev.

edn., 1969). below - see

Fuller,however, adopted the Hobbist reading of Hobbes sketched Lon L. Fuller, The Law in Quest of Itself (Boston: Beacon Press,

4

1966), pp. 19-30,

although he did note (atpp. 22-23) thatHobbes's principles of

naturalreason complicate the reading. In earlierwork, I accepted Fuller'sHobbist

reading - see David Dyzenhaus, Hard Cases in Wicked Legal Systems: South

HOBBESANDTHELEGITIMACYOFLAW

463

It is this understanding of legal order that makes the label "anti-positivist" preferable to the standardalternativesof either "positivist"or "naturallaw" when describing Hobbes's position. While there are naturallaw elements in his position, Hobbes does not subscribeto the naturallaw tenet that there is an independent moral good which must triumph in a clash with the positive law by stripping the law of its characteras such.5So "anti-positivist" better conveys the thought that Hobbes neitherfounded legal positivism norworkedwithinthe termsset by the naturallaw tradition. Thebasis for my argument is Hobbes'sown catalogue of thelaws of nature.Hobbes explicitly sets out these laws in such a way that each and every one of them can be explained as a further develop- ment of our understanding of what self-interest requires, once we perceive the fundamental importance of peace and stability. And this proceduregives rise to the "Hobbist" interpretation of his work

- that self-interest compels us to see that any because orderis preferable to chaos and law is

for an unconstrainedrulerto issue his commands. But while Hobbes did suppose thatwhatever keeps us out of the state of natureand in civil society is by definition legitimate, this

is an argument from an external perspective on civil society, one designed to appeal to individualswho have in common only that

order is legitimate merely the vehicle

African Law in the Perspectiveof Legal Philosophy (Oxford: Clarendon Press,

1991), chapter 9.

5

It might be more accurateto say that the naturallaw tradition- say from

Aquinas to JohnFinnis- argues boththatthereis an independent,divinelywilled, moral good and that the structureof that good is reflectedin the reason of the law. The second argument is in a sense one aboutthe immanent morality of law, one which ties law to legitimacy. The differencebetween Hobbesandthe natural law traditionis, then, that Hobbes does not make the second argument in any way dependent on the first,though some Hobbesscholars - most notably Howard

Warrender- holdthatthewhole structureof Hobbes's theorydepends on a version

of the first argument. See Howard Warrender, The Political Theoryof Hobbes:

His Theoryof Obligation(Oxford: Clarendon Press, 1957). However, the major impulse for the Warrenderline is thatwithoutsuch dependence one cannotfinda basis in Hobbesfor his full-bloodedaccountof political and legal obligation. And my argument in this essay is thatthereis an immanent basis, so thereis no need for an externalvalidationin divine will or in any othersource of morality; for example, the morality of equal concernand respect in RonaldDworkin'ssecular naturallaw.

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DAVIDDYZENHAUS

they areall motivated by self-interest.Fromthe internalperspective

subject in civil society the law has a very different if it is important, as Hobbes supposes, to justify on

the basis of self-interest establishing a society in which the laws can be effective, once effective they oblige in a way thattranscends

self-interested judgments. This distinction between external justification and internal or immanentcharacterhas not been addressedbecause Hobbes schol- arshipneglects most of Hobbes's catalogue of the laws of nature, so thatthe differentfunctionsHobbes had in mind in setting these laws outhavenotbeen noticed.6In particular, attentionhas focussed on the first group of laws, whose functionis to facilitateexit from the state of nature, an exit which Hobbes himself seems to make

of sovereign or character.Even

impossible. The second group has to do with the moral psychology of both legislators and subjects whichis necessary to sustaina prop- erly functioning legal order.The third has to do with the formal institutional requirements of such an order.

Once

we see the importance of the second and third groups, we

can also see how Hobbes was not so muchconcernedwith solving an insoluble problem of exit from the state of natureas with the constructionof a well-functioning order.The primaryproblem for him is not exit from the state of naturebut the proper construction of political and legal order.And while the constraintsof such order are in an important sense formalratherthan substantive, form links to substancein his theory in a way thatmakes legal order legitimate. Because a sovereign is by definitionone who governsthrough law, Hobbes'sabsolutismis constrained.Governmentin accordancewith

6 The closest account to my own is in the following passage in Michael Oakeshott, "TheRule of Law", in M. Oakeshott, On History and Other Essays (Totowa: New Jersey: Barnes and Noble, 1983), pp. 119-164: "But first, this lex naturalisturnsout not to be composed of genuine laws capable of imposing obligations (even in foro intero); it is composed of maxims that indicate the necessary causalconditionsof peaceful association.And secondly, on inspection it transpires that these maxims of rationalconduct are not independentprin- ciples which, if followed by legislators, wouldendow theirlaws with a quality of 'justice';they areno morethanan analytic break-downof the instrinsiccharacter of law, what I have called the jus inherentin genuine law which distinguishes it from a commandaddressedto an assignableagent or a managerial instruction concerned with the promotion of interests" [footnote omitted, spelling of fore corrected].

HOBBESAND THELEGITIMACYOF LAW

465

the ruleof law is governmentsubject to the moralconstraintsof the institutionsof legal order.

While the claim that Hobbes is not a positivist is still a minority claim in Hobbes scholarship, it is gaining more currency. But the way in which the claim is made puts Hobbes into a slot dictated by the contemporary debatein legal philosophy, one in which posi-

tivists dominateover natural lawyers

on which debateis conductedworkin theirfavour. As I show in this section, as a matterof textual interpretation it seems atfirstthatHobbes supplies evidencewhich allowsus to think of him as both a natural lawyer,though a ratherodd one, and as a decidedlypositivist thinker.Since he cannotbe made into a natural

lawyer as a matterof philosophicalargument, it then seems thatwe

should classify him as a positivist. However, I that close interpretive attentionto the text of differentconclusion.

for the reason that the terms

will proceed to show Leviathanleads to a

As the purported founderof legal positivism, Hobbes wrote at

for legal

a time when the naturallaw tradition provided the terms

theory. He himself gives a catalogue of the laws of naturea promi- nent role in his generalpolitical theory and he makes the striking claim in Leviathanthat "The Law of Nature, and the Civill Law, contain each other and are of equall extent".7He also says that "whatsoeveris not against the Law of Nature,may be made Law in the nameof them thathave the Soveraignpower".8 So he seems to adopt the classic premise of the naturallaw traditionthat there can be no conflictbetweenthe laws of nature- the morallaw - and the positive law. And Hobbes's definitionof law in chapter 26 of Leviathan supposes both that those subject to the law are undera

prior moral obligation to obey it andthatthe law,properly so called,

is positive law:

7 Thomas Hobbes, Leviathan, ed. C.B. Macpherson(London:Penguin Clas- sics, 1986), chap. 26 [138], p. 314. All referencesto this workare to this edition

with the

page

numbersin square brackets being to the original edition of 1651.

8

Leviathan,chap 26 [150], p. 333.

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DAVIDDYZENHAUS

And firstit is manifest, thatLaw in generall, is not Counsell, but Command; nora

Commandof any manto

to one formerlyobliged to obey him. And as for Civill Law, it addeth only the name of the person Commanding, which is Persona Civitatis, the Person of the

Common-wealth.9

anyman; but only of him, whose commandis addressed

Fromthe contemporaryperspective, Hobbes seems to deny one of the two centraltheses of legal positivism - the Separation Thesis thatthereis no necessary connectionbetweenlaw and morality. But he does seem to subscribeto the other thesis - the Identification Thesis thatthe law of a legal orderis its positive law. The Identification Thesis is implied in Hobbes's distinction between counsell and command, since one of the features of a commandis that one can identify its content withoutresortto the considerationswhich underlay the commander's judgment about what he ought to command.As Hobbes tells us in chapter25, for a commandto function as such, the reason one obeys has to do not with its content but with the authority of the commander, and that requires that its contentbe determinateand thus determinable withoutresortto moral argument:

COMMAND is, where a man saith, Doe this, or Doe not this, without expecting otherreasonthanthe Will of him that sayes it. Fromthis it followeth manifestly, thathe thatCommandeth, pretendeththereby his own benefit:For the reason of his Commandis his own Will onely, andthe properobject of every mans Will, is some Good to himselfe.10

I will leave until later Hobbes's rather odd claim that the commanderhas only his own benefit in mind, noting only the neglected movement in his definitionof commandfrom the idea

of a naturalcommanderin chapter 25 to the idea of the

legislator or sovereign in his chapter 26 definitionof civil law. First

I wantto get clearthe puzzle abouthow to place Hobbes. Hobbesseems part of the naturallaw traditionbecausehe denies the SeparationThesis; there can, according to him, be no conflict between positive law and morality or naturallaw.But he also

to subscribeto the Identification Thesis, which says that all law is

positive law. Moreover, it can be argued thatif Hobbes's position is

artificial

seems

9 Hobbes,Leviathan,chap.

26 [137], p. 312.

10 Hobbes,Leviathan,chap. 25

[131-132], p. 303.

HOBBESANDTHELEGITIMACYOFLAW

467

understoodas natural law, it is unique in the traditionsince any apparent conflictbetween naturallaw and positive law

resolvedin favourof the positive law of the legal orderin question. As NorbertoBobbio put it, "the true function of the natural law, and the only one thatcannotbe eliminated, is to provide the most absolute ground to the norm according to which there is no other validlaw than positive law".11 Hence, if one rejects with contemporarypositivists the idea that thereis anyprior moral obligation to obey positive law, it will seem that Hobbes's legal theory is positivist, once it is extractedfrom

the political theory which he thoughtgave rise to priorobligation. It will also seem that any attempt to make Hobbes into a natural lawyer must show that at least some conflicts between naturallaw and positive law are resolved in favourof naturallaw. The attempt will have to show that there is at least one moral good that is the

basis of legal obligation such that when the sovereignlegislates in violationof that good, his laws are stripped of legal force.12 The obviouscandidatefor sucha good is the natural good of indi- vidual self-preservation, which in Hobbes seems both the basis for the transitionfrom the state of natureto civil society - the explicit basis of the laws of nature- and gives to those subject to the law

a right to resist the sovereign when he threatensthem with death or other severe harms.It might seem that at least in this one case Hobbes resolves the conflict between positive law and naturallaw in favourof the latter. But in this case the sovereign's command will have all of the formalattributesof a valid law, andso will not appearany different from any othervalid law of the legal order.And so positivists can

for him is to be

11 Norberto Bobbio, ThomasHobbes and the Natural Law Tradition, trans.

Daniela Gobetti (Chicago: Chicago University Press, 1993), "NaturalLaw and

Civil Law in the Political Philosophy

of Thomas Hobbes", pp. 114-148, at p.

148.

12 The most sophisticatedattempt so

farto put Hobbesback in the naturallaw

traditionis

Ethics 105 (1995), pp. 846-873. On my account, Murphy'sattemptfails, first, becausehe accepts the termsset by the contemporary debateand second, because he, like almostall other participants in the discussionabouthow to place Hobbes, discusses the relationship between the laws of natureand positive law without giving any realattentionto Hobbes's catalogue of naturallaw.

to be found in MarkC. Murphy, "WasHobbes a Legal Positivist?"

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DAVIDDYZENHAUS

ask both whetherit assists our understanding of the natureof law to strip the commandof its legal characterand whether, from the perspective of moralor politicaltheory, it wouldnotbe clearerto say that the law is valid but iniquitous.Further,positivists would want to knowmoreaboutthe scope or implications of the conclusionthat the sovereign's commandis not law whenit so conflicts.Is it notlaw only for the affected subject on that particularoccasion, or not law

for subjects in general, and if the latter, what are judges and other

legal officialsto makeof thefailureof thecommandto

achieve legal

status? In short, Hobbes'snaturallaw position seems to fail

in theface of

the positivist response to any position which denies the Separation Thesis by asserting a necessary connectionbetween positive law and some substantivemoral good. If the sovereign exercises his law- makingpower in a technically appropriate fashion to make a law in conflict with that good, it will seem thatthereis every reasonto condemnhini for his iniquity, but no reasonto deny thathe made a valid law. Moreover, it is important to take into account that part of the

difficulty in exiting fromthe stateof natureis precisely thatthe first two laws of naturewhile determinatein aim - self-preservation - are so indeterminateas to methodthatHobbes seems to despair of individualsin the state of natureever agreeing abouthow to exit. Since the sovereign exists in orderto give content in particular to

these two laws, a serious problem

conflictbetween these laws andthe positive law. In this regard,any

to addressHobbes's "regress"argument,

naturallaw account has

thatthe sovereign has to be the supremejudge of right and wrong,

unlimited by

attends any attempt to set up a

any law if he is to fulfil his role.13

natureof a Common-wealth, is this, subject to the Civill Lawes. It is true,

13 "A fourth opinion, repugnant to the Thathe that hath the SoveraignPower, is

that Soveraigns are all subjects to the Lawes of Nature; because such lawes be Divine, and cannot by any man, or Common-wealthbe abrogated. But to those Lawes which the Soveraignhimselfe, thatis, which the Common-wealth maketh, he is not subject. For to be subject to Lawes, is to be subject to the Common-

wealth, that is to the Soveraign Representative, that is, to himselfe; which is

it setteth

not subjection, but freedome from the Lawes. Which errour, because

the Lawes above the Soveraign, settethalso a Judge above him, and a Power to punish him; which is to make a new Soveraign; and again for the same reason

HOBBESANDTHELEGITIMACYOFLAW

469

On that argument, it seems thatin the situationwherethe subject

has a right of resistance, that right is matched by the sovereign's right.14 The conflict here is one between right and right and not naturallaw and positive law. Wereit the latter conflict, the subject would have to give way to the sovereign since in civil society the sovereign'sjudgment aboutwhat naturallaw requires is definitive. And on the assumption thatthe sovereign has irresistible power, one can predict both his victory in fact and thatthe positive law under which he or his officialsact will remainin force. But that one cannot make Hobbes into a natural lawyer on the basis of the firsttwo laws of naturedoes not conclude the debate about his positivism. A curious fact about Hobbes scholarship is

that it, by

the laws of nature.One effect is that scholars have not noted that severe indeterminacy affects only laws 1 and 2, butnot the othersto

the same degree and often not at all. Of course, laws 1 and 2, that we should endeavourto attain peace and that we should lay down as muchof our right of natureas is necessary to achievethat end, as long as others lay downan equivalentamount, are- with law 3 that we should abide by our covenants- the most fundamentalof the laws. So there seems more than enough to discuss in the fact that indeterminacyseverely affects laws 1 and 2, which are the trans- itional laws of the stateof nature.For their indeterminacy seems to present a great,perhaps insurmountable, obstaclein the way of law 3 propelling us into civil society. But thatall the otherlaws aremuchmoredeterminatein content might suggest thatif we wish to find conflicts between naturallaw and positive law which Hobbes should or did resolve in favourof natural law, these other laws are far more likely candidates.And it is worth noting that one of the few laws that gets a fair amount of discussion - law 11 which requires that a man trustedto judge betweenmanandmanmustdeal withthem equally - gets thatatten-

and large,neglects detaileddiscussionof his catalogue of

a third, to punish the second; and so continually withoutend, to the

and Dissolution of the Common-wealth".Leviathan,chap. 29 [169], p. 367. For the label "regressargument", see Jean Hampton, Hobbes and the Social Contract

Tradition (Cambridge:CambridgeUniversityPress, 1988), pp. 97 ff.

Confusion,

14 Hence, Hobbes'scurious position on punishment, in which punishment is an

act of public authority, but which the sovereign exercises as a kind of residueof

the

right of nature- Leviathan,chap. 28 [161-162], pp. 353-354.

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DAVIDDYZENHAUS

tionbecauseHobbesdoes suggest in some well known passages that the sovereign can commit iniquity,though not injustice. In other words, the law about equity seems to provide a standardfor judging the sovereign which is not dependent for its content on the sover- eign's interpretation.15 Nor is this the only example. WhenHobbes says in chapter 28 of Leviathanthatthe sovereign'sright to punish

is subject to limits set by natural law, he must at least have in mind law 7, which directs revenge to focus on the greatness of the good to follow andnot on past evil.16

I will now show how once we haveHobbes's completecatalogue

of the laws of naturebefore us, we can see thatit is the laws other thanthe firsttwo thatarethe most likely candidatesfor establishing

Hobbes's anti-positivist credentials. Moreover, while to

the examples work by showingwhy

law andthesenaturallaws brings the validity of the positive law into

question, this is farfromthe whole or even the most importantpart of the story.

Hobbes's anti-positivism rests much more on majority of the laws of nature are beyond the

sovereign. The laws are beyond authority in that they are both conceptually and empirically constitutiveof sovereignauthority. A sovereign who systematically violates the laws of naturewill at the same time underminethe ability of civil society to functionand put

himself on the slipperyslope to not "counting" as a sovereign.

some extent

a conflictbetween the positive

the fact that the authority of the

II

Scholarlyneglect of the laws of

of attentionto the issue of degrees of indeterminacy. It has meant

naturehas effects well beyond lack

15 "Itis true that they that have Soveraignepower,may commit Iniquity; but

not Injustice, or Injury in the propersignification";Leviathan,chap. 18 [90], p.

232. "Nowthe Intentionof

were a greatcontumely for a judge to thinkotherwiseof the Soveraigne. He ought

therefore, if the Wordof the Law doe not fully authorisea reasonable Sentence,

to

in

Soveraign is as much subject, as any of the meanest of his people";Leviathan, chap 30 [180], p. 385.

the Legislator is alwayessupposed to be Equity: Forit

supply it with the Law of Nature

";

Leviathan,chap. 26 [145], p.

326. "For

this consisteth Equity; to which, as being a Precept of the Law of

Nature, a

16 Leviathan,chap. 28 [162], p. 354; andfor the law, see chap. 15 [76], p.

Hobbesmakesthe connection plain in his fifthinferencein chap. 28 [162],

210.

p. 355.

HOBBESAND THELEGITIMACYOF LAW

471

thatthe differentfunctionsHobbes might have had in mind for the laws of naturehave hardly been discussed. I have alreadysuggested that laws 1, 2 and 3 are fundamental. Law 1 enjoins us to seek peace as long as thereis hope of attaining it.17Law 2 tells us "Thata manbe willing, whenothersare so too, as

farre-forth, as for Peace, and defence of himselfe, to lay down this

things; and be contentedwith so much liberty against

right to all

other men, as he wouldallow othermen against himselfe."18 Law 3 says simply that"men performe theirCovenantsmade"andHobbes tells us that in this law of natureis to be found the "Fountainand Originall of JUSTICE"since the definitionof injustice is "thenot Performanceof Covenant".19 Once he has set out law 3, Hobbes immediately drawsour atten- tion to the fact thatthe pervasive fear of the state of naturerenders any covenanttherein invalid, so thatfor justice and injustice to come into being, it must be the case thatthere already exists a sovereign coercive power which can guaranteeperformance. Here we get the problem thatexit fromthe stateof nature by mutualcovenantseems impossible, whichthenseems to make superfluous Hobbes'sdiscus- sion in chapter 18 of sovereigntyby institution.And the conundrum Hobbes raises here is only made worse by the fact that for him sovereigntyby institution- by covenant- is at least as important a mode of establishingsovereignty as sovereigntyby acquisition - where you assent to the authority of a sovereign who has captured

you.20

17 Hobbesaddsthatwhen one cannotobtain peace, one may "seek, and use, all helps, and advantagesof Warre";Leviathan,chap. 14 [65], p. 190.

18

19

Leviathan,chap. 14 [64-65], p. 190.

Leviathan,chap. 15 [71], pp. 201-202.

20 Indeed, one could argue, though I will not do so here, that for Hobbes sovereignty by institution is paradigmatic for understanding the problems in

constructing civil society while sovereigntyby acquisition is deviant.Not only does he deal with sovereigntyby institution first, but his initial contrastbetween the two makes it clear that sovereigntyby institutioncoheres with his idea that

while sover-

obligations are generally incurred through an unforced covenant,

eignty by acquisition is forced; Leviathan,chap. 17 [88], p. 228. The latterof

problem about an impossible transitionfrom a state of nature

course raises no

since it involves giving one's consent to an alreadyexisting sovereign. But it is

at first sight problematic because of the dubious legitimacy of a situationwhere your consentis given to a foreignsovereign who has you by the throat.Hobbesis

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DAVIDDYZENHAUS

The laws immediately following law 3 are laws which are expressive of what Hobbes refers to in De Cive as an obligation in the stateof natureto a "readinessof mind"to observethe laws of nature"whensoevertheirobservationshall seem to conduce to the end for which they were ordained".21Law 4 is the law of gratitude, which requires "Thata manwhichreceiveth Benefitfrom another of

meer Grace, Endeavourthathe which givethit,

cause to repent him of his good will."22Law 5 is the law of "Mutuall

accomodation"or "Compleasance" andit requires "That every man strive to accomodate himselfe to the rest".Hobbes suggests thathe who opposes this law "for things superfluous, is guilty of the warre that thereupon is to follow; andthereforedoth that, whichis contrary to the fundamentallLaw of Nature, which commandethto seek Peace".23More briefly, law 6 requires"Facility to Pardon", law 7 is the law about revenge which requires thatone focus not on the past buton future good, law 8 is "againstContumely" or contempt, law 9 "againstPride", "That every man acknowledge other for his Equall by Nature",andlaw 10 is againstarrogance - "Thatat the entrance into conditions of Peace, no man require to reserveto himselfeany

Right, whichhe is

rest."24

have no reasonable

not contentshouldbe reservedto every one of the

All of these laws are clearly derivativesof the firstthreefunda-

mentallaws in thateach can be explained as furthering the good of self-preservation. But thereis moreto themthanthat. They also set

out whatwe can thinkof as the moral psychology of the just, eous or virtuousman- the subject who does not require the

right-

threat

clear thatin both cases fear is the ground of assent to sovereignauthority - fear of othersin the state of naturein the case of institution, and fear of the existing sovereign in the case of acquisition.Leviathan,chap. 20 [102], p. 252. And he expressly argues that duress in and of itself did not invalidatea covenant.But

he is still

concernedaboutthe issue of legitimacy, since he returnsto it in the

"ReviewandConclusion"to Leviathan,[390], p. 719. (He had though, it mustbe

pointedout, personal reasonsfor emphasizing the basis for his own allegiance to

a politicalregime he had opposed.)

21

Hobbes, De Cive, in BernardGert (ed.), Man and Citizen (Indianapolis:

Hackett PublishingCompany,1991), chap.3, paragraph27, p. 149.All references to De Civewill be to this edition.

22 Leviathan,chap. 15 [75], p. 209.

23 Leviathan,chap.

24 Leviathan,chap. 15 [76-77], pp. 210-212.

15

[76], pp.

209-210.

HOBBESAND THELEGITIMACYOF LAW

473

of punishment since he obeys the positive law for the right reason. They are not aboutthe psychological state of readinessof mind to obey, but about the obligation that stems from having reasons for obedience.Andhereone shouldnotethatthe textbetweenlaw 3 and law 4 containsnot only Hobbes's attempt at a response to the Foole who in civil society says that there is "no such thing as Justice", which means that he decides whether or not to obey the law on the basis of what he thinkswill maximisehis self-interest.25It also containsHobbes'sdiscussionof the "justman", the manwhose will is "framed by justice". Hobbes says thatone whose actions are just becausehe fearsthe consequences of actingunjustly, is not a just or "righteous man".26 The last group of laws are aboutthe institutionof legal orderin

that theypertain to the interpretation and implementation of the law,

bothnaturaland positive. And so they areunlikethe

the laws which need to be observedif legal orderis to be sustained

- andthe first group, which tells us how to establisha legal order.

Law 11 is the law of equity, that "if a between man and man, it is a precept of

he deal Equally between them".27The next threelaws are applica- tions of law 11. Law 12 requires the equal use of things common, law 13 requires division by lot if the thing can be neitherdivided nor enjoyed in common, and law 14 is the law of primogeniture or first seizure, which Hobbes regards as a natural lottery. Law 15 requires safe passage for mediators.28Law 16 requires "That they that are at controversie,submittheir Right to the judgementof an Arbitrator."29And because, says Hobbes, "every man is presumed to do all things in orderto his own benefit, no manis a fit Arbitrator in his own cause", which gives us law 17.30For the same reason, law 18 holds thatno man is to be judge who "has in him a natural cause of partiality". Law 19 - the last - is thatin controversiesof fact, the judge must give creditto the witnesses.

second group -

man be trustedto judge the Law of Nature, that

26 25 Leviathan,chap 15.

[72-73], pp. 203-204.

Leviathan,chap. 15 [74], pp. 206-207.

Leviathan,chap. 15 [78], p.

213.

27 Leviathan,chap. 15 [77], p. 212.

28 Leviathan,chap. 15 [77-78], pp. 212-213.
29

30 Leviathan,chap 15. [78], p. 213.

474

Note thatthe distinctionbetween the thirdandthe second group is not very sharp. Law 15 is in the third group because the reason

for it is closely tied to

to arbitration.But it could be in the second group as a requirement

of the "readinessof mind"of subjects who understandtheir obliga-

tions to natural law, just as the acknowledgment of the obligation

to

DAVIDDYZENHAUS

the reason for submissionof controversies

submit one's controversiesto arbitrationis also part and parcel

of that same readinessof mind. Moreover, laws in groups two and threeareunited by the fact thattheirobservanceis clearlyrequired

if the groups have different

functions. Nor is the distinctionbetween the first and second group very sharp, since, while it is the sovereign's taskto give contentto thefirst two laws of nature, he must give contentin sucha way thathe makes it possible for subjects to maintaintheirreadinessto obey.31 It is not insignificant that when Hobbes tells us that the "Lawesof Nature areImmutableand Eternall", it is laws in the second grouptogether

withlaw 3 thathe specificallynames,saying thattheirviolation"can neverbe madelawfull.Forit can neverbe thatWarreshall preserve life, and Peace destroy it."32For here Hobbes is telling us that a sovereign's commandthat any one of these laws be violatedwould be equivalent to a positive law which commanded subjects to seek conflictratherthan peace. Indeed, it seems clearthatHobbesthinks thatthese laws cannotbe commanded- are beyond authority - for the same reasonthatit is superfluous for the sovereign to command

his subjects to obey his

before obliged to obedience, thatis to say, not to rebel, all law is of

no force. Now the obligation which obliged to, is superfluous."33

in order to sustain civil society, even

positive laws: "For except subjects were

obligeth to whatwe werebefore

31 This creates yet anotherlinkbetween Hobbesand Fuller, if one understands Fuller's legal theory in the way proposed by Daniel Brudney, "Two Links of Law and Morality", Ethics 103 (1993), pp. 280-301. Only somewhat ironically,

Brudney's contrastclass for subjects with the right psychology is the "Hobbe- sian creatures, concerned solely for survival depicted by [H.L.A.] Hart in his

discussionof whathe calls 'theminimumcontentof naturallaw'"

; p. 288.

32 Leviathan, chap. 15 [79],

33 De Cive, chap. 14, paragraph 21, p. 287.

p.

215.

And see Leviathan, chap. 28

[163], p. 356 and chap. 30 [175-176], p. 377. I say in some sense not subject

to command,because it is clear that the sovereign can outlaw classes of what

HOBBESAND THELEGITIMACYOF LAW

475

In addition, even when a law of natureis highly indeterminateas to content, it is neverindeterminateas to intentionor purpose.34 In both Leviathanand De Cive, Hobbes makes a distinctionbetween in foro intero and in foro externo obligation, between the obli- gations of conscience and obligation that have an externalsource. And while this distinction is somewhat elusive, he is clear that there is a breachof one's obligation in foro interno- the obliga- tion imposedby conscience - when one's "Purpose was against the Law".35 Indeed, Hobbes suggests thateven when one's actionis in

accordancewith

of natureconstitutesa breach.And this obligation is statedas part of law 1. Itcanthenbe saidthat every commandof the sovereign hasa tacit riderto theeffect thatthe sovereign'sjudgment is thatthiscommand will serve the common good of peace. It is unnecessary to statethis

rider, since subjects must alwayspresume thatthe sovereign hasthis intention.But for the sovereignexpressly to statethathis intention is the opposite wouldmakehis commandinto somethingcrazy - not something a sovereign could be takento have said.36

the law of nature, one's purpose to violate the law

he considers to be seditious acts, even if it is superfluous to enjoin subjects to

obey the law. Similarly, while it is superfluous for him to enjoin by to refrainfrom contempt of others, certain contemptuous acts can outlawed, for example,by the law of libel or of contempt of court.

34 See Leo Strauss,ThePolitical Philosophyof Hobbes:Its Basis and Genesis

(Chicago: University of Chicago Press, 1984), pp. 24-25, including note 1 at p. 24, referring to Leviathan,chap. 13 [63], p. 188 (Straussgets the reference

wrong). 35 Leviathan,chap. 15 [78], p. 215. Hobbes, De Cive, chap.3, paragraph 28, p.

149. See furtherthe discussion in Leviathan, chap. 15 [74], pp. 206-207, of the

law subjects no doubt be

just man.

36 Compare Robert Alexy's argument about a constitutional assembly which

enactsas its first provision: "Xis a sovereign federaland unjustRepublic":Alexy, "A Defence of Radbruch's Formula", in David Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999), pp.

15-39.

Alexy suggests thatFuller'scriteriaor principles of legality can "complement but not replace" GustavRadbruch'sfamous formulathatextreme injustice is no law; p. 35. On my account, the Fullerian argument has moreof a