David Dyzenhaus ‘s book, The Long Arc of Legality: Hobbes, Kelsen, Hart. (Reply 1)
This symposium is a remarkably important debate on a remarkably important topic, perhaps the most critical in modern Hobbes studies. Dyzenhaus’s title, The Long Arc of Legality (CUP 2022), is a brilliant concept for the extraordinary trick of chance, I would argue, whereby Hobbes’s command theory of sovereignty was transmogrified into a theory of representation underpinning the legal theory of democracies. [1] This was due to Hobbes’s employment of corporation theory in the form of the persona ficta, a theological concept of personality most powerfully articulated by the glossators and post-glossators under the papal monarchy. [2] It is the thesis of my new book, Reading Hobbes Backwards: Hobbes, the Papal Monarchy and Islam, that Hobbes only at the last moment decided to name his ‘English Politiques’ after the scaly monster of the Book of Job, as a decoy to disguise the scholastic origins of his arguments which were a burning matter. [3] To his own surprise, it led to the runaway success of Leviathan, and in a direction, he had not intended. For, the concept of the Crown as Corporation, a fundament of the unwritten constitution of Great Britain and the Commonwealth to this day, enshrined Hobbes as a father of representative government ever since, as David Dyzenhaus has so well demonstrated.
Miguel Vatter, in his contribution to this symposium raises the most fundamental objection to Dyzenhaus’s thesis, alluded to also by Thomas Poole in this symposium, that it is counter-intuitive that Hobbes as a theorist of absolute monarchyshould try to pull off the hermeneutic trick of a command theory of sovereignty which is also constitutional. It is even more astonishing given that his materialist ontology necessarily ruled out non-corporeal entities like the persona ficta, on which it is based. But I think there are good reasons why Hobbes should try, as I shall try to show. Vatter gives an excellent account of how Hobbes invokes the social contract as the basis of constitutionality, so that the very act of endorsing a sovereign representative signals the endorsement of her commands, as Dyzenhaus acknowledges. This, I argue, was no academic matter. Hobbes knew that in his lifetime the failure of negotiations between the Protestant confessions at the Synods of Tonneins (1614) and Dort (1618-19) which might have prevented the appalling Thirty Years’ War (1618-48) — negotiations involving James I as the chosen peace-maker — failed precisely for want of a sovereign representative capable of holding the parties to their commitments. [4]
Hobbes signalled as early as 1640 in The Elements of Law, which echoes the title of Francis Bacon’s Elements of the Common Laws of England of 1630, his commitment to the Baconian programme of law reform. [5] Hobbes’s reasons were not academic, but deeply practical. In my piece ‘Quentin Skinner and Hobbes’s Truly Artificial Person of the State’ I tried to follow Skinner’s excellent example of reading Hobbes backwards, by considering not only the parliamentary debates that were the context for Leviathan, but also Common Law judgments and particularly those of Sir Edward Coke, otherwise Hobbes’s nemesis. [6] Vatter is right that Hobbes should not have touched the persona ficta, a theological concept of personality postulating metaphysical entities. But by Hobbes’s own day the persona ficta had entered the Common Law in the form of corporation. And this, I maintain, is why Hobbes makes the otherwise indefensible assertion in The Elements of Law, that he is the first to address the state as corporation, a claim with which, we know from Leviathan, he is determined to stick. A survey of Hobbes’s reference library at Chatsworth shows that it contained no glossators or post-glossators, who also go unmentioned in Hobbes’s texts. But it did contain a complete run of Common Law Statutes and Reports and most importantly the judgments of Coke. [7]
No friend of the great Common Lawyer, Sir Edward Coke, Hobbes had nevertheless read him carefully, citing his famous judgment in Dr. Bonham’s Case in Leviathan, as Dyzenhaus details (p. 25ff.); and naming Coke upon Littleton as his source for the claim that Common Law represented the ‘artificial perfection of reason’ in his important chapter ‘Of Civil Laws’ (Lev., II, ch. 26, §11). Hobbes’s persona ficta incorporates a theory of authorization, which in turn incorporates a theory of guardianship dating back to its 13c. publicist, Pope Innocent IV, which concerns not only persons, but also objects like a hospital and a bridge, permitting them to become subjects of a charitable trust. [8] Hobbes was clearly aware of the landmark case of Sutton’s Hospital, decided by Coke in 1612, which involved the contest by Thomas Sutton’s heirs of his bequest to the school and hospital founded by Sutton as a charitable trust in the London Charterhouse, and turned on whether or not the corporation had been legally constituted. Coke denied the claim of Sutton’s heirs that the corporation had been improperly constituted and lacked a legal personality to be the vehicle of a transfer of property; and his judgment in this case, recorded in the Reports, was a brilliant articulation of the persona ficta. Legal capacity as the basis of corporation theory until today depends on the concept of ‘legal persons’ that also dates back to the 13c. That persona ficta included a theory of authorization served Hobbes’s purposes.
As I say, even more pressing contextual reasons for Hobbes’s need for more than a command theory of sovereignty, whichI believe have never hitherto been addressed, concerned the failed negotiations leading up to the continental Thirty Years’ War (1618-48), in which James I had been fatally involved. The failure of well-intentioned efforts to bring the Protestant confessions together turned on the lack of a sovereign power capable of holding the parties to their commitments, the role these parties had vainly hoped James I could perform. The failure of the Synods of Tonneins (1614) and Dort (1618-19) resulted in the most horrific war on the European continent, where losses in terms of mortality rates, mainly for the German population, were never again reached until the final stages of WWII.
These two aspects of the context for Hobbes’s theory: that Common Law already articulated a theory of corporation invoked in landmark cases; and that catastrophic contemporary events had demonstrated peace to turn on constitutional sovereignty that was more than sovereign command, are I believe decisive for his attempt to pull off the apparently impossible trick of combining command theory with constitutional sovereignty. His attempt has had an extraordinary afterlife in the concept of the Crown as Corporation. But as I try to show in my book, there is more to it than this. Vatter is in a sense right that Hobbes the constitutionalist is a work of fiction, and one that in his day surprised even Hobbes himself. I have taken one step further Noel Malcolm’s excellent excavations of the title of Leviathan and its source in the Jesuit and Cappuchin commentaries that Hobbes researched in Marin Mersenne’s library in Paris in the 1640s. There the scaly monster from the Book of Job is a figure for incorporation. Malcolm notes that Hobbes seems to have decided late on the title for his master-work, and that Leviathan is not deeply embedded in the text. [9] This is clear even from the famous frontispiece, where the banner from the Book of Job almost flies off the page of the 1651 printed edition, as if inserted late, and is missing from the presentation copy to Charles II, which otherwise depicts an amiable king with striking resemblance to Charles himself, presiding over a shired and peaceful English landscape, a perfect illustration of the persona ficta. These observations on the late advent of Leviathan as Hobbes’s title I corroborate from the correspondence, where at the point at which some 37 chapters were already completed, the work appeared to be title-less and was referred to by Payne as Hobbes’s ‘English Politiques’. By deciding on the title Leviathan when he did, Hobbes not only rode the back of generations of Jesuit and Cappuchin commentators, who to most would have been nameless, but hoped to deflect attention, I argue, from his heavy indebtedness to the Aristotelian commentary tradition, otherwise known as scholasticism. [10] The fateful choice of title, which Hobbes may have regretted if we consider his remarks on the title Behemoth as ‘stupid’, led to the run-away success of Leviathan, which helped consolidate the English Protestant Reformation and to establish Hobbes’s style of empirical philosophy as the norm, as Marco Sgarbi has so successfully argued. [11] Its success deflected from the scholasticism of Hobbes’s sources but also from Hobbes’s authoritative understanding of Church history and his institutional account of the rise of the papal monarchy. In the late Historia Ecclesiastica, to which he was so committed he seems to have written it twice, Hobbes, I argue, tried to claw back his reputation for seriousness, but even here was thwarted by the interpolation of the names Leviathan and Behemoth, probably by his printer, hoping to sell more copies of those works which were in-house. [12] Drafts for Hobbes’s extraordinarily detailed exposition in his Church History of the problem of heresy, that bedevilled the Church post-Constantine as it did in his own day, and the innumerable Councils called to resolve it, may well have dated to the 1630s. The collection in the Hardwick Hall library, which he had assisted in compiling, had all the resources he needed on the Church Fathers, histories of the Councils, as well as Jesuit and Protestant commentaries. The much neglected Historia Ecclesiastica, written in Latin and in verse to give it deliberate inaccessibility, is nevertheless very important evidence for Hobbes’s intentions in Leviathan.
[1] For my critique of a similar but differently constructed theory of constitutionality, see my essay ‘Constitutionalism and Antiquity Transformation’ (Springborg 2019), published in a special review issue of Benjamin Straumann’s Crisis and Constitutionalism, in Global Intellectual History Global Intellectual History, 4, 3 (2019), pp. 223-49,https://doi.org/10.1080/23801883.2018.1527516.
[2] See my ‘Hobbes and the Papal Monarchy, A Neglected Subject’ (Springborg, 2021c), in Blackwell/Wiley Companion to Hobbes, Marcus P. Adams, ed., ch. 21, New York: Wiley, 2021: 348-64.
[3] See my Reading Hobbes Backwards, ch. 5, ‘Hobbes’s Leviathan has Feet of Clay’.
[4] See my Reading Hobbes Backwards, ch. 2, ‘James I and the Thirty Years’ War’.
[5] See my ‘Hobbes, Civil law, Liberty and The Elements of Law’ (Springborg 2016), Critical Review of International Social and Political Philosophy, (CRISPP), 19, 1, 2016: 47–67. https://doi.org/10.1080/13698230.2015.1122354.
[6] See my ‘Quentin Skinner and Hobbes’s Artificial Person of the State Redux’ (Springborg 2021b), Global Intellectual History, 6, 5, 2012: 732-78, online October 30, 2019.
[7] See my Reading Hobbes Backwards, ch. 3, ‘Drafts, MSs, Letters, Recollections and Boasts: A Timeline’.
[8] See the excellent analysis of Luka Ribarevic, ‘Leviathan and the Medieval Universitas: Hobbes’s Debt to Canon Law’. History of Political Thought, 38, 2017, 1: 92-109. For the origins of the charitable trust in the Islamic waqf, subject to technology transfer to Europe in the Crusades, see my ‘Raylor’s Revisionist Humanist Hobbes’ (Springborg 2021a),Global Intellectual History, 6, 4: 524-57; online April 17, 2019.
[9] See my Reading Hobbes Backwards, ch. 5, ‘Hobbes’s Leviathan has Feet of Clay’
[10] See my Reading Hobbes Backwards, ch. 1, ‘Hobbes, the Greek and Arabic Aristotle Commentary Traditions’.
[11] See Marco Sgarbi, ‘Towards a Reassessment of British Aristotelianism’, Vivarium 50 (2012): 85-109. See also Marco Sgarbi, The Aristotelian Tradition and the Rise of British Empiricism (Dordrecht: Springer, 2013).
[12] See my Reading Hobbes Backwards, ‘Appendix: Hobbes Shakes off Leviathan, Historia Ecclesiastica synopsis’.
