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.