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

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).