David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (2)

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.

Eleanor Curran (University of Kent)

Contribution to Online Colloquium on David Dyzenhaus’s The Long Arc of Legality, sections on Hobbes.

First, thank you to Gonzalo Bustamente Kuschel and to the European Hobbes Society for the opportunity to comment on David Dyzenhaus’s important new book, The Long Arc of Legality and specifically, on his arguments about Hobbes’s political and legal theory. 

Dyzenhaus argues, against the orthodoxy of Hobbes scholarship, that Hobbes proposes both a constitutionalist and a ‘rule of law’ political order. 

Dyzenhaus also wants to use Hobbes in the service of his larger project to solve ‘the puzzle of law’s authority’. (Dyzenhaus’s intro. to colloquium, p. 1) The question he wants to answer is ‘how is sheer political power transformed into legal right, the right to tell legal subjects – those subject to the state’s power – what to do?’ (The Long Arc of Legality, preface, ix).

This question of law’s authority leads to the thorny problem, within the philosophy of law, of how there can be very unjust law and after exploring the failure of both Hart and Dworkin to adequately solve this, Dyzenhaus turns to Hobbes. While acknowledging that Hobbes excludes the possibility of unjust law by saying that all law from the sovereign is ‘by definition just’, (D’s intro. p. 1.) he says that Hobbes’s category of ‘iniquitous law’ ‘points to an insight crucial to the whole argument of my book’ (D’s intro, p. 2). This insight is that ‘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’ (D’s intro. p. 2).

Dyzenhaus suggests that despite denying the existence of fundamental law, Hobbes implies something similar when he refers to such a law in ‘every Common-wealth’ which ‘being taken away, the Common-wealth faileth, and is utterly destroyed; as a building whose Foundation is destroyed’ (D quoting Leviathan 2014, CUP, ed. Richard Tuck, 199-200).

This allows us to see Hobbes’s solution to the problem of law’s authority. The solution (as Dyzenhaus interprets Hobbes), lies in the way Hobbes ‘configures the three elements of a successful theory of such authority’. These three elements are: the fundamental principles of legality; the role of officials in interpreting such principles; and the ‘constitutionalist idea’ which combine the first two elements in the contract of authorisation whereby individuals in the state of nature contract with each other to create the state and obey the sovereign who represents them (D’s intro. p. 2).

Dyzenhaus acknowledges a debt to Michael Oakeshott’s essay on the rule of law which posits ‘a vision of a state in terms of the rule of law which ‘hovers over the reflections of many so-called “positivist” modern jurists’, the most important of whom is Hobbes. The ‘right-giving basis of legal order’ in Hobbes is to be found in ‘his version of fundamental principles of legality articulated in Leviathan as the laws of nature,’ the science of which is ‘the true and onely Moral Philosophy’, (D’s intro. p.3, quoting Oakshott). Oakshott then ‘observes that they (the laws of nature) amount to no more than an analytic break-down of the intrinsic character of law, . . . the jus inherent in genuine law . . .’ (ibid.). 

Dyzenhaus takes this as his starting point and it is this intriguing proposal, that Hobbes’s laws of nature comprise the fundamental principles of legality, thereby providing the foundation of a rule of law legal order, that I would like to look at more closely. 

Dyzenhaus hints, (as above), that a crucial principle involved in both Hobbes’s theory and in the idea of the rule of law is that of the equality of legal subjects before the law. The most obvious reference to this in the laws of nature is in the eleventh law, Equity, according to which, ‘if a man be trusted to judge between man and man, it is a precept of the Law of Nature, that he deale Equally between them’ (Leviathan, Ch. 15). This gives us equality before the law, one of the most important rule of law principles.

I think that Dyzenhaus is on strong ground here. I agree that Hobbes’s law of equity can provide an important rule of law principle, as long as the argument that ties this into the sovereign is also accepted. That is, Dyzenhaus’s argument that although the sovereign is not ‘subject to legal principles’ in the way the discussion is usually formulated, the sovereign’s authority is constituted by fundamental principles which are ‘the right giving principles of the legal state’. (D’s intro. p. 6). The sovereign must ‘concretise general laws until they can be applied to legal subjects consistently with the laws of nature’ (ibid.). If at some point the sovereign fails to do this and acts against the people then they are no longer obliged to obey him and so his sovereignty fails.

The part of Dyzenhaus’s argument that I find a little puzzling is his proposal that it is the laws of nature in their entirety that comprise the fundamental principles of legality in Hobbes’s theory. ‘The right-giving basis of the legal order resides in its fundamental principles of legality. In Hobbes, these are his laws of nature’ (The Long Arc of Legality, intro. p. 5).

So, what ‘legitimates the legal order – what gives it the quality of legality which distinguishes it from the gunman writ large – ‘is its compliance with the laws of nature. And any enacted law ‘must also be interpretable by judges in light of the laws of nature’ (ibid., p. 135). This constrains the sovereign ‘not because of duties to its subjects’ which Hobbes, of course, explicitly rules out, but ‘rather the constraints come about because of the duty the judges owe to the sovereign to interpret enacted law in the light of their understanding of the laws of nature’ (ibid., p. 136).

Dyzenhaus refers to what he calls ‘the interpretive spectrum’ with the ‘duty end’ being established as above by judges being under a duty to strike down a law that fails either on the ‘validity proviso’ or on the need to be compatible with the laws of nature, and the ‘aspiration end’ being Hobbes’s statement in Ch 30 that the sovereign must make ‘good laws’ with good here not being good for the sovereign only but must also be good for the people (‘Needfull, for the Good of the People, and withal Perspicuous’ Leviathan, Ch. 30). This gives Dyzenhaus a connection to the reason why it is rational to authorise the sovereign. ‘As we have seen, not only is it the case that the laws of nature condition the content of the law but also they do so through their relationship to the reasons for obedience’ (The Long Arc of Legality, p. 143).

I would like to know more about the reasons for choosing all the laws of nature together as providing the ‘fundamental principles of legality’ rather than certain specific laws and principles such as the eleventh law of equity and the principle of natural equality (outlined in the ninth law ‘against pride’) which underlies it. Hobbes then reinforces his commitment to equity, as above, in Chapter 30, when he expands on the duty of the sovereign to procure the ‘safety of the people’. 

‘The safety of the People, requireth further, from him, or them that have the Soveraign Power, that Justice be equally administered to all degrees of People; that is, that as well the rich, and mighty, as poor and obscure persons, may be righted of the injuries done them; so as the great, may have no greater hope of impunity, when they doe violence, dishonour or any Injury to the meaner sort, than when one of these, does the like to one of them: For in this consisteth Equity: to which, as being a Precept of the Law of Nature, a Soveraign is as much subject, as any of the meanest of his People’ (Leviathan, Ch. 30, para 15).

I wonder whether some of the more obscure or more purely ‘moral’ laws of nature are needed for the rule of law argument. For example, the sixth law, ‘Facility to Pardon’, ‘That upon caution of the Future, a man ought to pardon the offences past of them that repenting, desire it’ (Leviathan, Ch. 15). Also, the eighth, ‘against Contumely’ ,’That no man by deed, word, countenance, or gesture, declare Hatred or Contempt of another’ (Leviathan, Ch 15). And the twelfth, ‘Equall use of things Common’, ‘That such things as cannot be divided, be enjoyed in Common, if it can be;  . . . otherwise Proportionably to the number of them that have Right’ (Leviathan, Ch 15).

I would be very interested to hear more about this choice, to include all of the laws of nature or rather, the laws of nature as a whole, as part of the argument that Hobbes was a rule of law theorist, rather than choosing those specific principles, such as equality before the law, which Hobbes clearly endorses. 

The book is a very interesting and stimulating read and it opened new possibilities to me of further exploration of the (historically underexplored) so-called ‘liberal’ tendencies in Hobbes’s theory.