David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (Reply 2)
Reply to Critics by D. Dyzenhaus
Let me start by again expressing my deep thanks to Gonzalo Bustamente Kuschel and to the European Hobbes Society for the opportunity to respond to three excellent commentaries on the chapter devoted to Hobbes in my The Long Arc of Legality: Hobbes, Kelsen, Hart. And I’m of course most grateful to the three scholars who took the time to consider my arguments. I will in what follows address only what I take to be the central points in each, as an attempt to respond fully to the detail of their arguments would consume too much space.
In her very sympathetic reconstruction of my argument, Eleanor Curran poses one important question: in my account of the legitimate authority of law, why do I choose all of Hobbes’s many laws of nature as providing the legitimating fundamental principles of legality ‘rather than 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’? She adds that Hobbes ‘reinforces his commitment to equity, … when he expands on the duty of the sovereign to procure the “safety of the people”’.
One answer is that I slipped up. In my very first paper on these themes, I was much more careful. I argued that the laws of nature fall into three main groups: the first group’s function is to facilitate exit from the state of nature; the second has to do with the moral psychology of both legislators and subjects which is necessary to sustain a properly functioning legal order; and the third has to do with the formal institutional requirements of such an order, akin to Lon L. Fuller’s principles of legality.[1] These distinctions are unfortunately at best implicit in my chapter on Hobbes and I focus mostly on laws that fall into the second group.
A better answer is that in singling out the ninth law against pride, which I had placed in my second group, and in mentioning the connection to the sovereign’s duty to procure the safety of the people, Curran also points to the difficulty in maintaining these distinctions. In this regard, I suggested in that paper that the distinction between the third and the second groups is not very sharp. Law eleven on equity is in the third group but, as we can see from Curran’s observation, it requires the state of mind signalled in the law against pride. Moreover, laws in groups two and three are united by the fact that their observance is clearly required to sustain civil society, even if the groups have different functions. I also pointed out that distinction between the first and second groups is hardly sharp. When Hobbes tells us in chapter 15 that the ‘Lawes of Nature are Immutable and Eternall’, it is laws in the second group together with law three (people must perform their agreements) that he specifically names, saying that their violation could ‘never be made lawfull. For it can never be that Warre shall preserve life, and Peace destroy it’.
In my view, the way the groups interact with each other is important, not only for Hobbes scholars, but also for contemporary political and legal philosophy; and I’m most grateful to Curran for prompting me to return to these issues since they are central to my current project, which is to elaborate a ‘political sociology of obedience’. At various points in The Long Arc of Legality, I suggest that philosophy of law needs to take seriously the idea that one of the existence conditions for legal order is that there is a ‘habit of obedience’ on the part of those subject to law, the idea put forward by John Austin, the nineteenth century legal positivist.[2] However, I depart from Austin, and from his twentieth century successor H.L.A Hart, in arguing that the habit entails that the subjects comply with the law not primarily because they fear sanctions for non-compliance. Rather, they accept the law as authoritative, albeit that their acceptance is for the most part tacit.
Note that this is not the tautology that the legal order and its laws are accepted because they are accepted. They are accepted because they are acceptable, notably, because particular laws do not have a content that radically undermines the formal equality before the law of those subject to it and because the laws have been enacted, implemented, interpreted and enforced in accordance with the relevant laws in group three. Moreover, accordance bears on content in that the constraint on particular laws is exercised by legal form.
In making this argument, I take inspiration from Bernard Williams’s ‘political realist’ account of legitimacy and what hecalled the ‘Hobbesian question’ of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’.[3]This, Williams said, is the ‘first’ political question because ‘solving it is the condition of solving, indeed posing, any others’.[4] But what Williams failed to appreciate is that for Hobbes the solution requires putting in place a legal order that functions in accordance with the laws of nature. Leviathan sets out a theory of political order as legal order, since a political order is characterized by authority relationships in contrast with relationships of unmediated coercive power and mediation is achieved by law. That mediation makes it possible for subjects to maintain the habit of obedience and to have the right kind of mindset towards the law of their legal order.
Of my two other commentators, Miguel Vatter is the more sceptical of my effort to cast Hobbes as the founder of our idea of the modern legal state and its commitment to the rule of law. He offers a Schmittean antidote to my own reading, which is, as he rightly notes, heavily influenced by Michael Oakeshott. I should note immediately my disagreement with Vatter’s claim that Carl Schmitt was one of Hobbes’s ‘most acute interpreters’. Schmitt pays almost no attention to Hobbes’s arguments, let alone interprets them, as he is not himself in the argument business. Rather, his work is a sustained polemic against democracy, liberalism and the rule of law, and he uses, better, abuses any resources he can find to that end.
Consider the sentence from chapter 26 of the Latin Leviathan which Vatter, following Schmitt, highlights: auctoritas non veritas facit legem. ‘Authority not truth makes law’ is Hobbes’s lapidary translation of the longer thought in the English Leviathan: ‘The Authority of writers, without the Authority of the Common-wealth, maketh not their opinions Law, be they never so true’. But Hobbes’s observation is a commonplace in legal theory, no more than the claim that Hart was to make centuries later that it ‘could not follow from the mere fact that a rule was morally desirable that it was a rule of law’.[5] Schmitt, in contrast, wants to turn this rather banal point into his reductive claim that all there is to law is power, that, to use Vatter’s own words, ‘adherence to previous law is merely the sovereign continuing to do as he pleased before to do’. If that were right, Hobbes was mistaken to include the material on which my chapter focuses–chapter 15 (laws of nature), chapter 26 (civil law), chapter 27 (punishment), and chapter 28 (punishment). In addition, there is much in the other chapters along the same lines.
All in all, Vatter goes wrong when he summarises my argument as that ‘commands have the force of law because sovereignty has a legal form’. Rather, it is that if a powerful entity wishes to rule by law, its commands must take legal form. That’s undeniable if only because it is a tautology, though one with significant implications. For in Hobbes’s hands, as in Fuller’s after him, there is a lot packed into what’s undeniable, as twentieth century legal positivists such as Hart and Joseph Raz acknowledged when they accepted Fuller’s account of legality, though they tried to resile from the implications of such acceptance by reducing Fuller’s principles to criteria of efficacy, an attempt which I argue in The Long Arc of Legality undermines their endeavour of providing a theory of law as a matter of authority, as a matter of right as well as might.
Fuller rightly argued that the principles establish a bond of reciprocity between ruler and subject, precisely Hobbes’s relationship between protection and obedience which Vatter emphasizes towards the end of his piece.[6] Vatter says, however, that he ‘sincerely’ doubts that Hobbes held the view that the ‘imperative of protection boil[s] down to the protection of the legal equality and legal interests of its subjects’ and he suggests that Hobbes never explicitly states this. But here Vatter passes over the many passages in Leviathan to this effect, for example, when Hobbes says at the beginning of chapter 30 that in his theory the ‘safety of the people’ does not amount to a ‘bare Preservation, but also all other Contentments of life, which every man, by lawfull Industry, without danger, or hurt to the Common-wealth, shall acquire to himselfe’.
In his main challenge to my position, Thomas Poole does not seek, like Schmitt and Vatter, to strip Hobbes’s account of the modern legal state of its complexity, but rather to show that it sits side by side in Hobbes’s state theory with the prerogative power of the sovereign to do as it will. Poole’s critique in this respect seems to me to trade on an ambiguity between saying that might as well as right is necessary to maintain a state and claiming that prerogative in the sense of legally unlimited might is always a legitimately available resource for the sovereign.
The first proposition poses no problem for my account since it is completely consistent with acknowledging that the sword of the sovereign, its monopoly on legitimate force, is as necessary to maintain the modern legal state as is the acceptance by a large proportion of its subjects of its authority as legitimate. (It is also by the way consistent with Hobbes’s observation in the Epilogue to Leviathan that all states have their origin in some act of illegitimate force.)
My account is, however, inconsistent with the second proposition, as it entails that every state is what Ernst Fraenkel in his analysis of the Nazi state termed a ‘dual state’: on the one hand, a ‘normative state’ in which matters are ruled by law, on the other, a ‘prerogative state’, in which officials do as they please, including in regard to any matter that would otherwise be dealt with in the normative state. As a result, Fraenkel argued, there was no rule of law in Nazi Germany and he regarded Schmitt, whom he detested, as the ideological architect of the dual state.[7]
Now Poole is right that Hobbes at times in Leviathan, and also elsewhere, suggests that the sovereign may when necessary act on the basis of its power outside of the law. However, as I argue at some length in my chapter, such suggestions are incommensurable with Hobbes’s general understanding of the modern legal state and so should be regarded as mistakes.
Poole’s remaining criticisms are, first, that he charges me with overemphasizing adjudication and judges when Hobbes’s focus is on the sovereign legislator and, second, he complains that I miss the sense in Hobbes of ‘political life being lived on the edge’.
I plead not guilty to the charge. To the extent that I gave this impression, it is because Hobbes himself did not live in a time when legislatures were enacting barrages of statutes and there was hardly anything like our modern administrative state in existence. Hence, Hobbes himself focuses on the role of judges in the modern legal state to elaborate his account of the interaction of enacted law with the laws of nature. But, as I argue at several points in the book, philosophy of law goes wrong when it focuses too much on the role of judges in legal order and Poole acknowledges this argument when he describes my approach to Hobbes as taking ‘an administrative law route’.
When it comes to political life ‘on the edge’, Poole says that it is above all ‘peace that matters. And for that you need order first, law second, rights a distant third. The costs of getting any of it wrong are so steep in Hobbes’s estimation that anyone who is not a fool (or a late 20th-century liberal legalist) would pay almost any price to avoid it’. I am confident that I’m the late 20th-century liberal legalist in this quotation and that perhaps makes me a fool. But I agree that it is above all peace that matters, as I suggested above in nailing my colours to the mast of Williams’s Hobbes-inspired political realism, and, as I also suggested, for Hobbes the order of civil society requires a legal order. Moreover, in such an order subjects will have legal rights which, as Ronald Dworkin explained, are the kind of political rights we have on demand from our adjudicative institutions.[8] While Poole is correct to associate Dworkin’s legal theory with the kind of liberal legalism which focuses on judges as the guardians of constitutionally entrenched rights, the point about legal rights is not tied to such a theory. Adjudicative institutions include all the institutions of legal order in which officials are under a duty to respond to the subject who demands that the official produce a legal warrant or justification for an official act and legal rights are just the rights that the subject is entitled to in virtue of the law relevant to the justification. It is for this reason that I try to make central to legal philosophical inquiry the subject’s question ‘But, how can that be law for me?’
I certainly hope that it is not foolish to suppose that this kind of order can be maintained. After all, it keeps us from away from ‘the edge’ to which the forces of the right in the United Kingdom, as elsewhere, seem determined to push us.
[1] David Dyzenhaus, ‘Hobbes and the Legitimacy of Law’ (2001) 20 Law and Philosophy 461, at 464.
[2] John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law (London: John Murray, 1885, 5th edn.), vol. 1, 220-1.
[3] Bernard Williams, ‘Realism and Moralism in Political Theory’, in Williams, In the Beginning was the Deed: Realism and Moralism in Political Argument ((Princeton: Princeton University Press, 2005; Geoffrey Hawthorn, ed.) 1.
[4] Ibid.
[5] [5] HLA Hart, ‘Positivism and the Separation of Law and Morals’, in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49, at 55.
[6] Fuller, The Morality of Law, 39-40.
[7] Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford: Oxford University Press, 2017).
[8] Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Belknap Press, 2011), 407
