DYZENHAUS_Hobbes and the Legitimacy of Law

8/6/2019 DYZENHAUS_Hobbes and the Legitimacy of Law

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Hobbes and the Legitimacy of LawAuthor(s): David DyzenhausSource: Law and Philosophy, Vol. 20, No. 5 (Sep., 2001), pp. 461-498Published by: SpringerStable URL: http://www.jstor.org/stable/3505220 .

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HOBBESAND THELEGITIMACYOF LAW1

(Accepted 3February001)

ABSTRACT. Legal positivism dominatesin the debate between it and naturallaw,but close attention o thework of ThomasHobbes- the "founder" f theposi-tivist tradition reveals a version of anti-positivismwith the potentialto changethecontoursof thatdebate.Hobbes'saccountof law ties law to legitimacythroughthe legal constraintsof therule of law.Legal order s essentialto maintaining heorder of civil society; and the institutionsof legal order are structuredn such away thatgovernment n accordancewith the rule of law is intrinsically egitimate.I focus on Hobbes's neglected catalogue of the laws of nature.Only thefirstgroupgets much attention.Its function is to facilitate exit from the state ofnature,an exit which Hobbes seems to make impossible.The second groupsetsout the moral psychology of both legislators and subjects necessary to sustaina properly functioning legal order.The third sets out the formal institutionalrequirementsof such an order. The second and thirdgroups show Hobbes notconcernedwith solving an insolubleproblemof exit from the state of naturebutwith the constructionof legitimateorder.Because a sovereign is by definitionone who governs through aw, Hobbes's absolutism s constrained.Governmentin accordancewith the rule of law is government ubjectto the moral constraintsof the institutionsof legal order.

Legalpositivismdominates odayin thegreatdebate n legalphilos-ophy betweenit andnatural aw.I will arguethat close attention othe work of Thomas Hobbes- generallyregardedas the founderofthepositivisttradition revealsa version of anti-positivismwith thepotentialto changethe contoursof thatdebate.In HLA Hart'scontemporaryversion, positivism puts forwardtwo central theses. The SeparationThesis holds that there is nonecessaryconnectionbetween law andmorality.The Identification

1 For comments and discussion, I thank Ed Andrew,Daniel Brudney,EvanFox-Decent, Cheryl Misak, MarkMurphy,ArthurRipstein,Michel Rosenfeld,and the students n my graduate eminaron Hobbesin the springof 2000.a Law and Philosophy 20: 461-498,2001.

? 2001 KluwerAcademicPublishers. Printedin theNetherlands.


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DAVIDDYZENHAUSThesis holds that the law of a legal orderis its positive law, lawwhose contentcanbe determinedwithoutresort o moralargument.2Hartsaw these two theses, especially the first, as the hallmarkof the positivisttradition.But he also arguedthat the traditionhadgone wrong in several respects, including in its idea that law isthe productof an "uncommandedommander", f a legally uncon-strainedsovereign.Hart arguedthat that idea fails to account forthe fact that every sovereign who wishes to rule throughlaw isconstrainedn thefollowingway.3Thesovereignhas to complywiththe fundamental uleof the legal order the "ruleof recognition"which stipulateswhenjudgmentsaboutthe common good will berecognisedas law.Hobbes is not only supposed to be the founder of the posi-tivist tradition,but the idea of the sovereign as uncommandedcommander s central to his understanding f law. However,I willarguethat Hobbes offers an accountof law which ties law to legit-imacy through he legal constraintsof the rule of law. ForHobbes,legal order is essential to maintainingthe order of civil society;and the institutionsof legal order are structured n such a waythatgovernment n accordancewith the rule of law is intrinsicallylegitimate.4

2 Both of these theses are articulated n H.L.A. Hart, "Positivism and theSeparationof Law and Morals,"reprinted n his Essays in JurisprudenceandPhilosophy(Oxford:ClarendonPress, 1983),pp.49-87 and in Hart,TheConceptof Law (Oxford:ClarendonPress, 1961). In a posthumouslypublished"Post-cript"to the second edition of the latterwork, Hartqualifiedthe second thesisby joining the "incorporationist"amp within legal positivism; see ConceptofLaw (Oxford:ClarendonPress, 1994), pp. 250-254. I will not go into this issuehere but I explore it in detail in "Positivism'sStagnantResearchProgramme",OxfordJournalof LegalStudies20 (2000), pp. 703-722.3 See Hart,"Positivismand the Separationof LawandMorals,"pp. 58-60 andTheConceptof Law,chap.6.4 As I will indicate ater,Hobbes'sclosest ally in contemporary ebates s LonL. Fuller.See Fuller,TheMoralityofLaw(New Haven:YaleUniversityPress,rev.edn., 1969). Fuller,however, adoptedthe Hobbist readingof Hobbes sketchedbelow - see Lon L. Fuller, The Law in Quest of Itself (Boston: Beacon Press,1966), pp. 19-30, althoughhe did note (atpp. 22-23) thatHobbes'sprinciplesofnatural easoncomplicatethereading.Inearlierwork,I acceptedFuller'sHobbistreading- see David Dyzenhaus, Hard Cases in WickedLegal Systems:South

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HOBBESANDTHELEGITIMACYFLAWIt is this understandingof legal order that makes the label"anti-positivist"preferable to the standard alternativesof either"positivist"or "natural aw" when describingHobbes's position.While there are natural aw elements in his position, Hobbes doesnot subscribe to the natural aw tenet that there is an independentmoralgood which musttriumph n a clash with thepositive law bystripping he law of its characteras such.5So "anti-positivist"etterconveys the thoughtthat Hobbes neither foundedlegal positivismnorworked withinthe terms set by the natural aw tradition.Thebasis formy arguments Hobbes's owncatalogueof thelawsof nature.Hobbesexplicitly sets out these laws in such a way thateach andevery one of them can be explainedas a furtherdevelop-ment of our understandingof what self-interestrequires,once weperceive the fundamental mportanceof peace and stability.Andthisproceduregives rise to the "Hobbist"nterpretationf his work- that self-interestcompels us to see that any order is legitimatebecause order is preferable o chaos and law is merely the vehicle

for anunconstrained ulerto issue his commands.But while Hobbes did supposethat whateverkeepsus out of thestate of nature and in civil society is by definitionlegitimate,thisis an argument rom an externalperspectiveon civil society, onedesigned to appeal to individuals who have in common only thatAfrican Law in the Perspectiveof Legal Philosophy (Oxford:ClarendonPress,1991), chapter9.5 It might be more accurateto say that the natural aw tradition say fromAquinasto John Finnis- arguesboththatthere s anindependent,divinelywilled,moral good and that the structureof that good is reflectedin the reason of thelaw. The second arguments in a sense one aboutthe immanentmoralityof law,one which ties law to legitimacy.The differencebetweenHobbesandthe naturallaw tradition s, then, that Hobbes does not make the second argument n anyway dependenton the first,thoughsome Hobbes scholars mostnotablyHowardWarrender holdthatthe whole structure f Hobbes'stheorydependson a versionof the first argument.See HowardWarrender,The Political Theory of Hobbes:His Theory of Obligation(Oxford:ClarendonPress, 1957). However,the majorimpulsefor theWarrenderine is thatwithoutsuchdependenceone cannot findabasis in Hobbesfor his full-bloodedaccountof politicalandlegal obligation.Andmy argument n this essay is that thereis an immanentbasis, so thereis no needfor an external validationin divine will or in any other source of morality;forexample, the moralityof equalconcernandrespectin Ronald Dworkin'ssecularnatural aw.

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they are all motivatedby self-interest.From the internalperspectiveof sovereignor subjectin civil society the law has a very differentcharacter.Even if it is important,as Hobbessupposes,to justify onthe basis of self-interestestablishinga society in which the lawscan be effective, once effectivetheyoblige in a way that transcendsself-interestedudgments.This distinction between externaljustification and internal orimmanentcharacterhas not been addressedbecause Hobbes schol-arshipneglects most of Hobbes's catalogueof the laws of nature,so that the different functions Hobbeshad in mind in settingtheselaws out have not beennoticed.6Inparticular, ttentionhasfocussedon the firstgroupof laws, whose functionis to facilitateexit fromthe state of nature,an exit which Hobbes himself seems to makeimpossible.The secondgrouphas to do with the moralpsychologyof bothlegislatorsandsubjectswhich is necessaryto sustaina prop-erly functioninglegal order.The third has to do with the formalinstitutional equirements f such anorder.Once we see the importanceof the second andthirdgroups,wecan also see how Hobbeswas not so much concerned with solvingan insoluble problemof exit from the state of nature as with theconstructionof a well-functioningorder.The primaryproblemforhim is not exit from the stateof naturebut the properconstructionof politicalandlegal order.And while the constraintsof such orderare in an important ense formal rather hansubstantive, ormlinksto substance n his theory n a waythatmakeslegal order egitimate.Because a sovereignis by definitionone who governsthrough aw,Hobbes's absolutism s constrained.Government n accordancewith

6 The closest account to my own is in the following passage in MichaelOakeshott,"TheRule of Law", in M. Oakeshott,On Historyand OtherEssays(Totowa:New Jersey:Barnes and Noble, 1983), pp. 119-164: "But first, thislex naturalisturns out not to be composed of genuine laws capableof imposingobligations (even in foro intero); it is composed of maxims that indicate thenecessarycausal conditionsof peaceful association.And secondly,on inspectionit transpiresthat these maxims of rationalconduct are not independentprin-ciples which, if followed by legislators,would endow theirlaws with a qualityof'justice'; theyare no more thanan analyticbreak-downof the instrinsiccharacterof law, what I have called thejus inherent n genuine law which distinguishesit from a command addressed o an assignableagent or a managerial nstructionconcerned with the promotionof interests"[footnote omitted, spelling of forecorrected].

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the rule of law is governmentsubjectto the moralconstraintsof theinstitutionsof legal order.

While the claim that Hobbes is not a positivist is still a minorityclaim in Hobbes scholarship, t is gaining more currency.But theway in which the claim is made puts Hobbes into a slot dictatedby the contemporarydebatein legal philosophy,one in whichposi-tivists dominate over natural awyers for the reason that the termson which debate is conductedworkin their favour.As I show in this section, as a matterof textualinterpretationtseems at first hatHobbessuppliesevidence which allowsus to thinkof him as both a natural awyer, thougha ratherodd one, and as adecidedlypositivistthinker.Since he cannot be made into a naturallawyeras a matterof philosophical argument,t then seems that weshouldclassify him as a positivist.However,I will proceedto showthatclose interpretiveattentionto the text of Leviathanleads to adifferentconclusion.As the purported ounderof legal positivism, Hobbes wrote ata time when the natural aw traditionprovidedthe terms for legaltheory.He himself gives a catalogueof the laws of naturea promi-nent role in his general political theory and he makes the strikingclaim in Leviathan that "The Law of Nature,and the Civill Law,contain each other and are of equall extent".7 He also says that"whatsoever s not against the Law of Nature,may be made Lawin the nameof them that have the Soveraignpower".8So he seemsto adoptthe classic premise of the natural aw tradition hat therecan be no conflictbetweenthe laws of nature the moral law - andthe positive law. And Hobbes's definition of law in chapter26 ofLeviathansupposesboth that those subjectto the law are under apriormoralobligationto obey it andthatthelaw,properlyso called,is positivelaw:

7 ThomasHobbes, Leviathan,ed. C.B. Macpherson London:PenguinClas-sics, 1986), chap.26 [138], p. 314. All references to this work are to this editionwith thepage numbers n squarebracketsbeing to the originaledition of 1651.8 Leviathan,chap26 [150], p. 333.

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And first t is manifest,thatLawin generall, s notCounsell,butCommand;noraCommandof anyman to anyman;butonly of him,whose command s addressedto one formerlyobliged to obey him. And as for Civill Law, it addethonly thename of the person Commanding,which is Persona Civitatis,the Person of theCommon-wealth.9Fromthe contemporaryperspective,Hobbes seems to deny oneof thetwo centraltheses of legal positivism- the SeparationThesisthatthere s no necessaryconnectionbetween law andmorality.Buthe does seem to subscribe to the other thesis - the Identification

Thesis that the law of a legal order s its positivelaw.The Identification Thesis is implied in Hobbes's distinctionbetween counsell and command, since one of the features of acommandis that one can identify its contentwithoutresortto theconsiderationswhich underlaythe commander's udgment aboutwhat he ought to command.As Hobbes tells us in chapter25, fora command to function as such, the reason one obeys has to donot with its content but with the authorityof the commander,andthatrequiresthat its content be determinateandthus determinablewithoutresortto moralargument:COMMANDis, where a man saith,Doe this, or Doe not this, withoutexpectingother reasonthan the Will of him thatsayes it. From this it followethmanifestly,that he thatCommandeth,pretendeth herebyhis own benefit: For the reason ofhis Command s his own Will onely,and theproperobjectof everymansWill, issome Goodto himselfe.10

I will leave until later Hobbes's rather odd claim that thecommander has only his own benefit in mind, noting only theneglected movement in his definition of commandfrom the ideaof a naturalcommander n chapter25 to the idea of the artificiallegislatoror sovereignin his chapter26 definitionof civil law.FirstI wantto get clear thepuzzle abouthow to place Hobbes.Hobbesseems partof the natural aw traditionbecause he deniesthe SeparationThesis; therecan, accordingto him, be no conflictbetweenpositivelaw andmoralityornatural aw.But he also seemsto subscribeto the IdentificationThesis, which says that all law ispositive law.Moreover, t can be argued hatif Hobbes'spositionis9 Hobbes, Leviathan,chap.26 [137], p. 312.10 Hobbes, Leviathan,chap.25 [131-132], p. 303.

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HOBBESANDTHELEGITIMACYFLAWunderstoodas natural aw, it is uniquein the tradition ince for himany apparent onflictbetween natural aw andpositive law is to beresolvedin favourof the positive law of the legal order n question.As NorbertoBobbio put it, "the true function of the natural aw,and the only one thatcannotbe eliminated,is to providethe mostabsolutegroundto the norm accordingto which there is no othervalid law thanpositivelaw".11Hence, if one rejectswith contemporarypositiviststhe idea thatthereis anypriormoralobligationto obey positivelaw,it will seemthat Hobbes's legal theory is positivist, once it is extracted fromthe political theorywhich he thought gave rise to prior obligation.It will also seem that any attemptto make Hobbes into a naturallawyermust show that at least some conflicts between natural awandpositive law are resolved in favourof natural aw. The attemptwill have to show that there is at least one moralgood that is thebasis of legal obligationsuch that when the sovereign legislates inviolationof thatgood, his laws arestrippedof legal force.12Theobviouscandidate or such a good is thenaturalgood of indi-vidual self-preservation,which in Hobbes seems both the basis forthe transition rom the state of natureto civil society - the explicitbasis of the laws of nature- and gives to those subjectto the lawa right to resist the sovereignwhen he threatensthem with deathor other severe harms. It might seem that at least in this one caseHobbes resolves the conflict betweenpositive law and natural awin favourof the latter.But in this case the sovereign's commandwill have all of theformal attributes f a validlaw,and so will not appearanydifferentfrom any othervalid law of the legal order.And so positivistscan

11 NorbertoBobbio, Thomas Hobbes and the Natural Law Tradition, rans.Daniela Gobetti (Chicago: Chicago UniversityPress, 1993), "NaturalLaw andCivil Law in the Political Philosophy of Thomas Hobbes",pp. 114-148, at p.148.12 The most sophisticatedattemptso far to putHobbes backin the natural awtradition s to be found in MarkC. Murphy,"Was Hobbes a Legal Positivist?"Ethics 105 (1995), pp. 846-873. On my account, Murphy's attemptfails, first,because he acceptsthe termsset by thecontemporary ebate andsecond,becausehe, like almost all otherparticipantsn the discussionabouthow to place Hobbes,discusses the relationshipbetween the laws of nature and positive law withoutgiving anyrealattention o Hobbes'scatalogueof natural aw.

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ask both whetherit assists our understanding f the natureof lawto stripthe command of its legal characterand whether,from theperspectiveof moralorpoliticaltheory, t would not be clearer o saythat the law is valid but iniquitous.Further,positivistswould wantto know more aboutthe scope or implicationsof theconclusion thatthesovereign'scommand s not law whenit so conflicts. Is it not lawonly for the affectedsubjecton thatparticularoccasion,or not lawfor subjectsin general,and if the latter,what arejudges andotherlegalofficialsto make of the failureof the command o achievelegalstatus?In short,Hobbes's naturalawpositionseemsto fail in theface ofthe positivistresponseto any position which denies the SeparationThesisby assertinganecessaryconnectionbetweenpositivelawandsome substantive moral good. If the sovereign exercises his law-makingpower in a technically appropriateashion to make a lawin conflict with thatgood, it will seem thatthere is everyreason tocondemnhini for his iniquity,but no reason to denythat he made avalid law.Moreover,it is important o take into account that part of thedifficulty n exitingfrom the state of nature s preciselythat the firsttwo laws of naturewhile determinaten aim - self-preservationare so indeterminateas to method that Hobbes seems to despairofindividualsin the state of natureever agreeingabout how to exit.Since the sovereignexists in order to give content in particular othese two laws, a seriousproblemattendsany attemptto set up aconflict between these laws and thepositive law. In thisregard,anynatural aw account has to address Hobbes's "regress"argument,thatthe sovereignhas to be the supreme udge of rightandwrong,unlimitedby anylaw if he is to fulfil his role.13

13 "A fourthopinion, repugnant o the nature of a Common-wealth, s this,Thathe that hath the SoveraignPower,is subjectto the Civill Lawes. It is true,that Soveraignsare all subjectsto the Lawes of Nature;because such lawes beDivine, and cannotby any man, or Common-wealthbe abrogated.But to thoseLawes which the Soveraignhimselfe, that s, which theCommon-wealthmaketh,he is not subject.For to be subjectto Lawes, is to be subjectto the Common-wealth, that is to the Soveraign Representative, hat is, to himselfe; which isnot subjection,but freedomefrom the Lawes. Which errour,because it setteththe Lawes above the Soveraign,settethalso a Judgeabove him, and a Power topunish him; which is to make a new Soveraign;and again for the same reason

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HOBBESANDTHELEGITIMACYFLAWOnthatargument,t seems that in the situationwherethe subjecthas a right of resistance,thatright is matchedby the sovereign'sright.14The conflict here is one between right and right and notnatural aw andpositive law. Were it the latterconflict, the subjectwould have to give way to the sovereignsince in civil society thesovereign'sjudgmentabout what natural aw requires s definitive.And on theassumption hatthesovereignhas irresistiblepower,onecan predictboth his victoryin fact and that the positive law underwhich he or his officials actwill remain n force.But that one cannot make Hobbes into a natural awyer on thebasis of the firsttwo laws of nature does not conclude the debateabout his positivism. A curious fact about Hobbes scholarship sthatit, by andlarge, neglectsdetailed discussionof his catalogueofthe laws of nature. One effect is that scholars have not noted thatsevereindeterminacy ffectsonly laws 1 and2, but notthe otherstothe same degree and often not at all. Of course, laws 1 and2, thatwe should endeavour o attainpeace and that we shouldlay down

as muchof ourrightof natureas is necessaryto achievethatend,aslong as otherslay down anequivalentamount,are- with law 3 thatwe should abide by our covenants- the most fundamentalof thelaws. So there seems more thanenough to discuss in the fact thatindeterminacyseverely affects laws 1 and 2, which are the trans-itional laws of the stateof nature.For theirindeterminacy eems topresenta great, perhaps nsurmountable, bstaclein the way of law3 propellingus into civil society.But that all the other aws are muchmore determinaten contentmight suggest thatif we wish to find conflicts betweennatural awand positive law which Hobbes should or did resolve in favourofnatural aw, these other laws are far more likely candidates.Andit is worthnoting that one of the few laws thatgets a fair amountof discussion - law 11 which requiresthat a man trustedto judgebetween manand manmustdealwiththemequally- gets thatatten-a third,to punishthe second; and so continuallywithoutend, to the Confusion,and Dissolution of the Common-wealth".Leviathan,chap. 29 [169], p. 367. Forthe label "regressargument",ee JeanHampton,Hobbesand the Social ContractTradition Cambridge:CambridgeUniversityPress, 1988), pp. 97 ff.14 Hence, Hobbes'scuriouspositiononpunishment, n whichpunishments anact of public authority,butwhich the sovereignexercises as a kind of residue ofthe rightof nature Leviathan,chap.28 [161-162], pp. 353-354.

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tion becauseHobbes does suggestin some well knownpassagesthatthe sovereign can commit iniquity, though not injustice. In otherwords,the law aboutequityseems to providea standardorjudgingthe sovereignwhich is not dependentfor its contenton the sover-eign's interpretation.15 or is this the only example.WhenHobbessays in chapter28 of Leviathan hat the sovereign'srightto punishis subjectto limits set by natural aw,he must at leasthave in mindlaw 7, which directsrevengeto focus on the greatnessof the goodto follow andnot on pastevil.16I will now showhow once we have Hobbes'scompletecatalogueof the laws of naturebefore us, we can see thatit is the laws otherthan the firsttwo that are the most likely candidates orestablishingHobbes'santi-positivist redentials.Moreover,while to someextentthe examplesworkby showing why a conflictbetweenthe positivelaw andthese natural awsbringsthevalidityof thepositivelawintoquestion,this is far fromthe whole or even the most importantpartof the story.Hobbes's anti-positivismrests much more on the fact that themajority of the laws of nature are beyond the authorityof thesovereign. The laws are beyond authorityin that they are bothconceptuallyandempiricallyconstitutiveof sovereignauthority.Asovereignwho systematicallyviolates the laws of naturewill at thesame time undermine he abilityof civil society to functionandputhimself on the slipperyslope to not "counting" s a sovereign.

IIScholarly neglectof the laws of naturehas effects well beyondlackof attention o the issue of degreesof indeterminacy. t has meant

15 "Itis true thatthey thathave Soveraignepower,may commit Iniquity;butnot Injustice,or Injury n the proper signification";Leviathan,chap. 18 [90], p.232. "Nowthe Intentionof the Legislator s alwayessupposed o be Equity:Foritwere agreatcontumelyfor ajudge to thinkotherwiseof the Soveraigne.He oughttherefore, f the Wordof the Law doe not fully authorisea reasonableSentence,to supplyit with the Law of Nature..."; Leviathan,chap.26 [145], p. 326. "Forin this consistethEquity;to which, as being a Preceptof the Law of Nature,aSoveraignis as much subject,as any of the meanest of his people";Leviathan,chap30 [180], p. 385.16 Leviathan,chap.28 [162], p. 354; and for the law, see chap. 15 [76], p. 210.Hobbes makes theconnectionplainin his fifth inference n chap.28 [162],p. 355.

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DAVIDDYZENHAUSThe laws immediately following law 3 are laws which are

expressive of what Hobbes refers to in De Cive as an obligationin the state of nature o a "readinessof mind" o observethe laws ofnature"whensoever heir observationshall seem to conduce to theend for whichthey were ordained".21 aw4 is the law of gratitude,whichrequires"Thata man whichreceivethBenefitfromanotherofmeer Grace,Endeavour hat he whichgivethit, have no reasonablecause to repenthimof his good will."22Law5 is the law of "Mutuallaccomodation" r "Compleasance" nd it requires"Thateverymanstrive to accomodatehimselfeto the rest".Hobbessuggeststhat hewho opposesthis law "forthingssuperfluous,s guiltyof the warrethatthereupons to follow;and thereforedoththat,which is contraryto the fundamentallLaw of Nature, which commandeth to seekPeace".23Morebriefly, aw 6 requires"Facility o Pardon",aw 7 isthe law aboutrevengewhichrequires hat one focus not on the pastbut on futuregood, law 8 is "againstContumely" rcontempt, aw 9"againstPride","Thateverymanacknowledgeother or his EquallbyNature",and law 10 is againstarrogance "Thatat the entranceinto conditionsof Peace, no man requireto reserve to himselfeanyRight,whichhe is not content shouldbe reservedto everyone of therest."24All of these laws are clearly derivativesof the first three funda-mental laws in that each can be explainedas furtheringhe good ofself-preservation.But thereis more to themthanthat.They also setout whatwe can think of as the moralpsychology of thejust, right-eous or virtuousman- the subjectwho does not requirethe threatclear thatin both cases fear is the groundof assent to sovereignauthority fearof others in the state of nature n the case of institution,and fear of the existingsovereign in the case of acquisition.Leviathan,chap. 20 [102], p. 252. And heexpressly arguesthat duress in and of itself did not invalidate a covenant.Buthe is still concernedaboutthe issue of legitimacy, since he returnsto it in the"Reviewand Conclusion" o Leviathan,[390], p. 719. (He hadthough, t must bepointedout,personalreasonsfor emphasizingthe basis for his own allegiancetoa politicalregimehe hadopposed.)21 Hobbes, De Cive, in BernardGert (ed.), Man and Citizen (Indianapolis:HackettPublishingCompany,1991), chap.3, paragraph 7, p. 149.All referencesto De Cive will be to this edition.22 Leviathan,chap. 15 [75], p. 209.23 Leviathan,chap. 15 [76], pp. 209-210.24 Leviathan,chap. 15 [76-77], pp. 210-212.

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of punishmentsince he obeys the positive law for the rightreason.They are not about the psychological state of readiness of mind toobey, but aboutthe obligationthat stems from havingreasons forobedience. And here one should notethatthe text between law 3 andlaw 4 contains not only Hobbes'sattemptat a responseto the Foolewho in civil society says that there is "no such thing as Justice",which means that he decides whether or not to obey the law onthe basis of what he thinkswill maximise his self-interest.25 t alsocontains Hobbes'sdiscussion of the "justman", he man whose willis "framedby justice".Hobbessays that one whose actionsarejustbecause he fearsthe consequencesof acting unjustly, s not ajust or"righteousman".26The last groupof laws areabout the institutionof legal order inthattheypertain o the interpretationndimplementation f the law,both naturalandpositive.And so theyare unlike the secondgroup-the laws which need to be observed if legal order s to be sustained- andthe firstgroup,whichtells us how to establish a legal order.Law 11 is the law of equity,that "if a man be trusted to judgebetweenman and man, it is a preceptof the Law of Nature, thathe deal Equallybetweenthem".27The next threelaws are applica-tions of law 11. Law 12 requiresthe equal use of thingscommon,law 13 requiresdivision by lot if the thing can be neither dividednor enjoyed in common, and law 14 is the law of primogenitureor firstseizure,which Hobbes regardsas a natural ottery.Law 15requiressafe passage for mediators.28Law 16 requires"Thattheythat are at controversie,submittheirRightto thejudgementof anArbitrator."29 nd because, says Hobbes,"everyman is presumedto do all thingsin orderto his own benefit,no man is a fit Arbitratorin his own cause",which gives us law 17.30 For the same reason,law 18 holds that no man is to be judge who "has in him a naturalcause of partiality".Law 19 - the last - is that in controversiesoffact, thejudge mustgive creditto the witnesses.

25 Leviathan,chap15. [72-73], pp. 203-204.26 Leviathan,chap. 15 [74], pp. 206-207.27 Leviathan,chap. 15 [77], p. 212.28 Leviathan,chap. 15 [77-78], pp. 212-213.29 Leviathan,chap. 15 [78], p. 213.30 Leviathan,chap 15. [78], p. 213.

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DAVIDDYZENHAUSNote that the distinctionbetweenthe thirdand the secondgroupis not very sharp.Law 15 is in the thirdgroupbecause the reasonfor it is closely tied to the reason for submission of controversiesto arbitration.But it could be in the second groupas a requirementof the "readinessof mind"of subjectswho understand heirobliga-tions to natural aw,just as the acknowledgmentof the obligationto submitone's controversies o arbitration s also partandparcelof that same readinessof mind.Moreover, aws in groupstwo andthree are unitedby the fact thattheirobservance s clearly required

in order to sustaincivil society, even if the groupshave differentfunctions.Nor is the distinction between the first and second groupverysharp,since,while it is thesovereign's ask to give content o thefirsttwo laws of nature,he mustgive content n suchaway thathe makesit possible for subjects o maintain heirreadinessto obey.31 t is notinsignificantthatwhen Hobbes tells us that the "Lawes of Natureare ImmutableandEternall",t is laws in the secondgrouptogetherwith law 3 thathe specificallynames,sayingthattheirviolation "cannever be made lawfull. For it can neverbe that Warre hallpreservelife, and Peace destroy it."32For here Hobbes is telling us that asovereign'scommandthatany one of these laws be violated wouldbe equivalentto a positive law which commandedsubjectsto seekconflictrather hanpeace. Indeed,it seems clearthatHobbes thinksthatthese laws cannotbe commanded arebeyondauthority forthe same reason that it is superfluousor the sovereignto commandhis subjects to obey his positive laws: "Forexcept subjects werebeforeobligedto obedience,thatis to say,not to rebel, all law is ofno force.Now theobligationwhichobligethto what we were beforeobligedto, is superfluous."33

31 This createsyet another inkbetweenHobbes andFuller, f one understandsFuller's legal theory in the way proposedby Daniel Brudney,"Two Links ofLaw andMorality",Ethics 103 (1993), pp. 280-301. Only somewhat ronically,Brudney'scontrast class for subjectswith the right psychology is the "Hobbe-sian creatures,concerned solely for survivaldepicted by [H.L.A.] Hart in hisdiscussion of whathe calls 'the minimumcontent of natural aw'" ...; p. 288.32 Leviathan,chap. 15 [79], p. 215.33 De Cive, chap. 14, paragraph21, p. 287. And see Leviathan,chap. 28[163], p. 356 and chap. 30 [175-176], p. 377. I say in some sense not subjectto command,because it is clear that the sovereign can outlaw classes of what

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In addition,even when a law of nature s highlyindeterminate sto content,it is never indeterminate s to intentionorpurpose.34 nboth Leviathan and De Cive, Hobbes makes a distinctionbetweenin foro intero and in foro externo obligation,between the obli-gations of conscience and obligationthat have an external source.And while this distinction is somewhat elusive, he is clear thatthere is a breach of one's obligation inforo interno- the obliga-tion imposed by conscience- when one's "Purposewas againsttheLaw".35 ndeed,Hobbessuggests that even when one's actionis inaccordancewith the law of nature,one's purposeto violate the lawof natureconstitutesa breach.And this obligationis stated as partof law 1.Itcan then be said thateverycommandof thesovereignhasatacitrider o theeffect thatthesovereign's udgment s thatthis commandwill serve thecommongood of peace. It is unnecessary o state thisrider,since subjectsmustalways presume hatthesovereignhas thisintention.But for the sovereign expresslyto state thathis intentionis theoppositewould make his command ntosomethingcrazy- notsomethinga sovereigncould be taken to have said.36he considers to be seditious acts, even if it is superfluous o enjoin subjects toobey the law. Similarly,while it is superfluous or him to enjoin by law subjectsto refrainfrom contemptof others, certaincontemptuousacts can no doubt beoutlawed,for example,by the law of libel or of contemptof court.34 See Leo Strauss,The Political Philosophy of Hobbes:Its Basis and Genesis(Chicago: University of Chicago Press, 1984), pp. 24-25, including note 1 atp. 24, referringto Leviathan,chap. 13 [63], p. 188 (Straussgets the referencewrong).35 Leviathan,chap. 15 [78], p. 215. Hobbes,De Cive,chap.3, paragraph 8, p.149. See further he discussion in Leviathan,chap. 15 [74], pp. 206-207, of thejust man.36 CompareRobertAlexy's argumentabout a constitutionalassembly whichenacts as its firstprovision:"X is a sovereignfederalandunjustRepublic":Alexy,"ADefence of Radbruch'sFormula", n David Dyzenhaus (ed.), RecraftingtheRule of Law: The Limits of Legal Order (Oxford:HartPublishing, 1999), pp.15-39.

Alexy suggests that Fuller's criteriaor principlesof legality can "complementbut not replace"Gustav Radbruch's amous formulathat extremeinjusticeis nolaw;p. 35. On my account,theFullerianargumenthas more of a role to play.Hobbes,note, is even concernedabout the statusof the obligationthe subjecthas to fightin a warwhose objectis to preserveor attainpeace, since thatobliga-tion carriesthe riskof death,and so raises the same kind of problemfor Hobbes

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DAVIDDYZENHAUSThe constrainton sovereign authorityhere is in a sense purelyformal,since it seems that as long as thesovereigndoes not state anintention to violate the laws of nature,any commandhe utters willbe valid. But while formal,the constraint s not empty.It arises forsubstantivereasons,since the commandcontradicts he substantivebasis of the authority o issue commands.At the least,theconstraintdistinguishesHobbes'slegal theoryfromcontemporarypositivism.For from the positivistperspective,an expressintention n a law toviolate some substantiveconsiderationwhich is claimed to be the

moralor politicalbasis for obedience to law cannotby itself makethat law suspectas law.The kind of command in issue here is one where the sover-eign explicitly statesthat his intention s to violate the first law ofnature. The sovereign could of course issue particularcommandswhose effect cumulativelywould be the same without stating oreven having that intention. These commandsmight both be validandobligation-creating.But there areothercommandswhichare ontheir face suspectfor reasons otherthan thatthey state an intentionto violate the laws of nature.37as submissionto lawful execution. See Leviathan,chap.21, [112], pp. 269-270,thoughin "AReview, andConclusion",Hobbes addsa further aw to his laws ofnature"toprotectin Warre, heAuthority, ywhich he is himselfprotected n timeof Peace";[390], pp. 718-719.37 Daniel Brudneyprovidedme with a useful list of situations o test my argu-ment,including:(a) regardlessof his intent, he sovereignfails to bringpeace;(b)regardlessof his intent,thetendencyof the soverein'sactionswill not- in thenottoo distantfuture- bring peace; (c) the sovereigndeclares his intent not to bringpeace,butcircumstancesare such thatpeaceobtains the sovereign s wickedbutineffective. Withoutgoing into detail, I suggest that the distinction(one whichBrudneyalso pointed out) between the ways in which the laws of nature areempiricallyconstitutive of sovereign authorityand conceptuallyconstitutive, shelpfulherepreciselybecause it showshow in practicethe two arelinked.With (a) and (b), if the sovereign does intend to bring peace, but his lawscontradicthis intentions,then authority s in fact undermined.And at a certainpointin thisprocess, conceptualornormativessues aboutauthoritywill perforcearisebecause the factual s connectedto the normative.Forexample,considertheissue aboutwhether udges should be entitled to scrutinisethe reasonablenessofthe executive'sjudgmentthat circumstancesare such thatdeclarationof a stateof emergencyis warranted. Foran instructivedecision duringthe apartheid rain SouthAfrica, see FriedmanJ.'sjudgmentfor a full bench of the Natalcourt inTsenoli v. State President,discussed and overruled n State President v. Tsenoli

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The second is where the sovereigncontradictsboththe intentionof the law of natureand the content of particularaws because thecommandviolates the more or less determinate ontentof a partic-ular law whose role is clearly to assist the operationof the mostfundamentalaws. Forexample,the sovereigncommands, n viola-tion of law 15, that one kill all mediators.38 n both this case andthefirst,suspicionarisesfor substantive easons,since thecommandcontradicts he substantivebasisof theauthorityo issue commands.But in this second case, one does not need the formalexpressionofintention to violate the laws of nature,because of the determinatecontent of the law in question.The sovereign who commands hissubjectsto kill all mediators ssues a commandthatis tantamountoanexpressstatement hatthesovereign'spurpose s not toendeavourpeace.39The thirdgroundof suspicion arises when the sovereignissuesa commandwhich subverts he institutional tructureof legal order,thussubverting he institutionwhichmakesitpossible for thesover-1986(4) SA 1150 (A). Fordiscussion,see EtienneMureinik,"SecurityandInteg-rity,Acta Juridica (1987), pp. 197-219, and David Dyzenhaus, Hard Cases inWickedLegalSystems:SouthAfricanLaw in the Perspectiveof Legal Philosophy,p. 167. In SouthAfrica's post-apartheidConstitution,the courts are now givenexplicit authority o test this issue.)Conversely, n regardto (c), laws which explicitly contradict he duty to seekpeace will always be suspect in partbecause one can neverpredictthatstabilitywill not be underminedby apublicdeclarationof thissort.Consider, orexample,whatthepublicwouldmakein the UnitedKingdomof theenactmentof theGroupAreas Act, discussed in the text below, even if one would have predictedthatsuch a statute could never be enforcedin the United Kingdom.Put differently,the predictiondependsalso on thejudgmentthatno Parliamentwouldeverenactsuch a statute.The otherpartof the responseto (c) is, of course, thatefficacyis aprecondition or the existence of legal order,but not for the validityof particularlaws.

38 Murphy argues that such a command would be valid; see Murphy,"WasHobbesa LegalPositivist?",p. 857.39 Suppose,however,that the sovereignwishes mediatorsto be killed becausethatwill causeconflictsin otherpartsof theworldtopersistwhichwill then ensurehis ability to withstandattack from without, thus making peace within moresecure. This problem is one about tensions between Hobbes's theory of inter-nationalrelations,which holds thatsuch relationsare like the relations betweenindividuals n the stateof nature,and his accountof domesticorder. will not gointo this issue here.

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eign to issue successful commands.This thirdground s somewhatanalogousto the fourth,where the command fails because it is soindeterminate hat it has no real content. Imagine,for example, asovereignwhose only commandto his subjects s "Be moral!".Thedifferenceis thatfor less severecases of indeterminacyhan in myexample,Hobbesputsin placejudgespartof whosejob descriptionis to cure indeterminacy,while in the third there is no institutionalsolution since it is the institutionof law itself that is in issue. Butin both cases the problem here is in a sense formal ratherthansubstantive,since it is not so much the basis of the sovereign'sauthority hat is in issue, but the formal conditions for the exerciseof thatauthority.For example, the sovereign who commands thathis judges areentitledto give judgment o thepartywho canoffer thebiggestbribeissues a commandwhich subvertsentirelythe office of judicature,and so contradictspartof what Hobbes concedes to be a "Funda-mentall Law" of sovereignty.40And it is also clear for Hobbes thatlaw 19, thatin controversiesof fact thejudge mustgive credit to thewitnesses,places constraintson a sovereign'sauthorityo intervenein criminaljustice. For he says both that"'Tis againstthe Law ofNature, 7b punish the Innocent;and Innocent is he that aquittethhimselfe Judicially"and that "It is also againstLaw, to say thatno Proofe shallbe admittedagainsta Presumptionof Law. For allJudges,Sovereignand subordinate, f they refuse to heareProofe,refuse to do Justice."41

40 "Fora FundamentallLaw in every Common-wealth s that, which beingtaken away, the Common-wealthfaileth, and is utterlydisolved; as a buildingwhose Foundation s destroyed.And thereforea FundamentallLaw is that, bywhich Subjectsare bound to upholdwhatsoeverpoweris given to the Soveraign,whetheraMonarch,or a SoveraignAssembly,withoutwhich theCommon-wealthcannotstand,such as is thepowerof WarandPeace,andJudicature, f Election ofOfficers,andof doing whatsoverhe shall thinknecessaryfor the Publiquegood.Not Fundamentall s thatthe abrogatingwhereof,drawethnot with it the dissolu-tion of the Common-Wealth; uch as are the Lawes concerningControversiesbetweensubjectandsubject."Leviathan,chap26 [150], p. 334.41 Leviathan,chap. 26 [144-145], pp. 324-325. While these last constraintsareabout the process of fact-finding,and so mightseem proceduralor formal innature, heyare also substantive, ince theyin effectprotect herightof anaccusedto fairtrial.

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In sum, particularcommandsmust be capable, first, of beingassertedas the commandsof one whose will is directed at subjectswhose attitudeto the law is, as we saw Hobbes put it, "framedby justice".42And that requiresthat the sovereign not expresslycontradict he implicit assertionthat he is always operatingwithinthat same frame, whetherthat contradictioncomes aboutthroughthe expressionof a contrary ntentionor through he violation of alaw of naturewhichhas determinate ontent.Second,the commandsmustbe capableof achievingthequalityof legality,of beingfilteredthrough he institutionsof legal order.43My argument,then, is that Hobbes's anti-positivismmanifestsitself in requirements f formrather hansubstance,and,in partic-ular in the second and third groups of natural laws. Now thedistinctionbetween formand substance s notoriouslytrickyin lawas well as elsewhere; and I will not assume that it is less so inthis context. Indeed, it is important or my argument o see bothhow formalrequirementsconnect to substantiverequirementsandthat the distinctionbetweenthem is fruitful.Further,t is importantto see that formal requirementscan amount to substantivemoralconstraintswithout t beingthecase thatfailureto complywith suchrequirementsmust issue in judicial declarationsof invalidity.Andthatbringsme to the questionof Hobbes's view of the constraintson sovereign authorityand the limited role he gives to judges inpolicingthoseconstraints.

42 Leviathan,chap. 15 [74], pp. 206-207.43 A contemporary xampleis the way that common law courtshavegrappledwithprivativeor ouster clauses - statutoryprovisionswhich commandthe courtsto refrain from reviewing the decisions of administrativebodies or officials. Ifthese provisions were interpreted iterally, the administrationwould be uncon-trolledby law. Courts hus saidthatthelegislaturecouldnot have intended o ousttheir review jurisdictionentirely,which left them with the problemof makingsense of the text of the provisionswithin a theoryof what standardof review toapplyto thedecisions. Formy own accountof the struggleof Canadian ourtstodevelopsucha theory,see DavidDyzenhaus,"ThePolitics of Deference:JudicialReviewandDemocracy", n M. Taggart ed.), TheProvinceofAdministrativeLaw(Oxford:HartPublishing,1997), pp. 279-307.

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DAVIDDYZENHAUSIII

I have alreadyalludedto Hobbes's elusive distinction between inforo internoandinforo externo obligation,which is standardlynter-pretedto mean thatthe laws of nature are bindingas a matterofconsciencein the state of nature:The Lawes of Natureoblige inforo interno;thatis to say, they bind to a desirethey should take place; but in foro externo;that is, to the puttingthem in act,not alwayes. For he that should be modest, and tractable,and performeall hepromises, in such time, and place, where no man els shoulddo so, should butmakehimselfea preyto others,andprocurehis own certainruine,contrary o thegroundof all Lawes of Nature,which tend to Naturespreservation.Andagain,hethathavingsufficientSecurity, hatothersshall observethe same Lawes towardshim, observes themnothimselfe, seeketh notPeace, butWar;& consequently hedestructionof his Natureby Violence.44

Some Hobbes scholars doubt that Hobbes could really havemeant that the laws of nature have any force whatsoeverin thestate of nature.45But thingshave to be different n civil society, asHobbessuggestsin apassagejust prior o the one in which he makeshis distinction,when he says that"Theseare the Lawes of Nature,

44 Leviathan,chap 15 [79], p. 215. An analogous problem arises becauseHobbes assertsboth that no covenants can be binding outside of civil societyand that covenantscan be binding in the state of natureafter firstperformancehas been made;compareLeviathan,chap. 14 [68], p. 196 withchap. 15 [74], pp.206-207.

45 As Michael Oakeshottobserved,nothingin the passage directlyauthorisesthe standard nterpretation. t assumes what is at stake - that for Hobbes thelaws of nature are laws properly so called. And proper law requires (amongotherthings)anauthor o whom subjectsarealreadyobliged.The only candidatefor such an author s God. And while Hobbes does claim divine authority orthe laws of nature,and suggests that mortal sovereigns are accountableto theimmortalSovereign, it is also clear that in the state of naturethere is no suchthing as an authentic nterpretation f God's will; nothingmoreworthythantheclaim thatthis is what I want. See Oakeshott,"The Moral Life in the Writingsof Thomas Hobbes",pp. 327-330, Michael Oakeshott,"TheMoral Life in theWritingsof ThomasHobbes",in Oakeshott,Rationalism in Politics and OtherEssays (Indianapolis:LibertyFund, 1991), pp. 295-350, note 92, andpp. 327-330. The correspondingpassages in De Cive might seem even less supportiveof the standardnterpretation;ee De Cive, chap. 3, paragraph 7, pp. 148-149,includingthe note atp. 149.

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would be odd,of course,forsubjects o haveto say to themselves astheysoughtto understandHobbes'sargumentor theirobligationtoobey the law thatthey shouldobey commandswhose consequencewas by definitionsome otherperson's good. It wouldalso be odd ifHobbes's law 17, a law which requires hatno manbe judge in hisown cause becauseeveryindividual s "presumedo do all thingsinorderto his own benefit",51 dded as a riderthatthe partiesshouldknow that thejudge intended his own benefit in thejudgment.Notonly wouldthis rider introducea rankinconsistencyinto law 17, itwould also emptylaw 11 - that thejudge has to judge equitably-of all meaning.Indeed,Hobbes tells us that a "goodJudge" s onewho has a "rightunderstandingof that principallLaw of Naturecalled Equity...", and is, amongotherthings, "able injudgementto devest himselfe of all feare, anger, hatred, love, and compas-sion".52However,as I will now show,the oddnessdisappearsonceone sees that Hobbes's definitionof commandfirstcontemplatesanaturalpersoncommandinganother,but the sovereignwho issuescommands as supremejudge of a commonwealthis an artificialperson.Hobbesalwaystalks of the sovereignas one individual,as "he",perhapsbecause of his own prejudicefor monarchyas the formof governmentbest suited to maintain he commonwealth.But hispersonificationof the sovereigncannotescape the generaltheme ofLeviathan.As he tells us in his Introduction n theveryfirstpage ofthe book, the sovereignis an artificialperson,a creation of humanartifice, and, moreover,not even the reasoninghead of the greatmonster,but its soul:Forby Art is createdthatgreatLEVIATHANcalled a COMMON-WEALTH,rSTATE in latine CIVITAS),which is but an ArtificiallMan;thoughof greaterstatureand strengththanthe Naturall,for whose protectionand defence it wasintended;and in which, the Soveraignty s an ArtificiallSoul, as giving life andmotionto the whole body.53It follows that the benefit intended by the sovereign in issuingcommands can only be the benefit of the commonwealth,which isto say thatall commandsby definitionaim at the commongood of

51 Leviathan,chap. 15 [78], p. 213.52 Leviathan,chap.26 [146-147], p. 328.53 Leviathan,"TheIntroduction"1], p. 81.

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these constraintsat their most minimal are much thickerthan theconstraintsof mannerand formwhichHarthadin mind.As we have seen, Hobbes in contrast o contemporarypositivistssupposes there is one substantiveconstrainton the sovereign.Bydefinition,civil law is law which the subjecthas a priorobligationto obey, and so, if the basis for thatobligationis missing, then thesovereign'scommandsaresuspect.Now there are two interpretations bout how to cash out thisconstraint.The first is that the constraint s illusory,since whatever

the sovereigncommandsmust be takenas conforming o thenaturallaw. The second is that the constraintdoes have cash value. Fornatural awinterpretationsf Hobbes the cashvalue of theconstraintis the subject's right to resist the sovereign in particularcircum-stances,while in contemporarydebatesit is more or less assumedthat it is judges who are the guardiansof constraintson sovereignauthority.I mentionedabove reasons for doubtingthe natural law inter-pretationof that constraint.Anotherway of puttingthose reasonsis to say that it is a mistake to think that a substantiveconstraintin order to be a genuine constrainthas to cash out in somethingsubstantive.In other words, a constraintthat starts in somethingsubstantivemightturnout to be formal in naturebut still genuinelyconstraining.Recall my claim that for Hobbes it has to be the case that asovereignwho issues a command which expressly contradictsthepurposeof law 1 would have issued a commandthat is on its facesuspect.I also suggestedthat the samemightbe true of commandswhich expresslyviolate thepurposeof anyof the laws of nature,ofcommands which requireactions in violation of the contentof theperson or body who has power to initiaterepeal of a law is only boundby thatlaw in thathe or it chooses not to repealit. "TheSoveraignof a Common-wealth,be it an Assembly, or one Man, is not Subjectto the Civill Lawes. For havingpowerto make,andrepealeLawes,he may when he pleaseth,free himselfe fromthatsubjection,by repealingthose Lawes that troublehim, and makingof new;and consequentlyhe was free before. For he is free, that can be free when hewill ..."; Leviathan,chap 26. [137-138], p. 313. Comparethe passage whichcontains the "regress"argument:Leviathan,chap. 29 [169], p. 367. Note thatHobbesdoes permitthe subjectto challenge the sovereignin court for violatingthe law - Leviathan,chap.21 [113], pp. 271-272.

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laws of naturewhenthe laws have a contentsufficientlydeterminateto make sense of the claimthatthere s a violation,and of commandswhich subvert he institutionof law.Now, as I have mentioned, the sovereign can make particularjudgmentsabout what will serve peace and aboutany of the othertasks of sovereigntywhich might turn out to have the opposite ofthe intended effect. Generally speaking, though, even if subjectssuspectthis to be the case, they must obey the law, reservingtheirdoubts o theirhearts."PrivateReason mustsubmit o thePublique",

as Hobbes says on the issue of faith if the sovereignestablishesareligion.58But Hobbes is not only opposed to subjects' second-guessingthe sovereign,he is also hostile to judges makingthemselves intoguardiansof morality.Hence he is opposed to the common lawtraditionbecause it asserts the common law to be a source of lawnot only independentof the supreme egislature,butpriorto - andthus perhaps superiorto - it. However,he is in no doubt that anysovereignwouldhaveto delegate nterpretative uthorityo a staff ofjudges,because,as he says, "AllLaws, written,andunwritten,haveneed of Interpretation."59oreover, t is clearthat for him this factmeansthatthe laws of natureplay a role in interpretation ecausethey are part of the law of a civil society: "Civill, and NaturallLaw arenotdifferentkinds,butdifferentpartsof Law;whereof onepartbeing written, s called Civill, the otherunwritten,Naturall".60Hence his claim thatjudges must be able interpreters f the laws ofnature,particularly quity.Hobbes is also quick to emphasize that the stampof authorityfor such interpretationsomes fromthe sovereignand he limits thelegal force of any particular udgment to the parties in a bid toavoidjudges buildingtheirinterpretations f the law into a systemof common law.61 But the point is that when judges interpret hepositivelaw,theyareunderanobligation o give it content n accord-ance with theirunderstanding f the laws of nature,which are- at

58 Leviathan,chap.38 [238], p. 478.59 Leviathan,chap.26 [143], p. 322.60 Leviathan,chap26 [138], pp. 314-315.61 "TheInterpretationf theLawes of Nature, n a Common-wealth,dependethnot on the books of MorallPhilosophy."They are only law by sovereign power,whichmeansthat

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DAVIDDYZENHAUSleast in civil society - as much law as positive law. And Hobbesenjoins judges to operateon the interpretative ssumption hat theintentionof the "Legislator s alwayes supposedto be Equity;Forit were great contumely for a Judge to think otherwise of theSoveraign."Thejudge "ought herefore, f the Wordof the Lawdoenot fully authorisea reasonableSentence,to supplyit withthe Lawof Nature;or if the case be difficult,to respit Judgment ill he havereceived moreampleauthority."62In otherwords,judges must lean in the direction of findingthepositive law to be in accordancewith the laws of nature,thoughnot so far that they usurp for themselves the authorityto judgewhat is good for the Common-wealth:"thoughno Incommoditycanwarranta Sentenceagainstthe Law. Forevery Judgeof Right,andWrong,is not Judgeof what is Commodious,or Incommodious othe Common-wealth."63ndeed,it is important o see thatHobbessets out for judges an alternative o interpretationas the way tocureapparentnconsistencieswith natural aw - reserving udgmentpendingenlightenment rom above.And thatsuggests a means forjudges to alertthe commonwealth o suspect laws which does notbringthem into institutional onflictwith the legislature.64It is only whenwe appreciatehe importanthoughrestricted oleof judges in Hobbes's accountof legalorder hatwe can make senseof the second definitionof law he offers in Leviathan, his time inhis discussionin chapter30 of thedutiesinherent n the office of theThe Interpretation f the Law of Nature, s the Sentence of the Judgeconstitutedby the SoveraignAuthority, o heareanddetermine uchcontroversies,as dependthereon;and consistethin the applicationof the Law to the presentcase. For inthe act of Judicature, he Judgedoth no more butconsider,whither the demandof the party,be consonantto naturallreason, and Equity;and the Sentence hegiveth, is therefore he Interpretationf the Law of Nature;which Interpretationis Authentique;not becauseit is his privateSentence;but because he givethit byAuthorityof the Soveraign,whereby t becomes the SoveraignsSentence;whichis Law for thattime, to thepartiespleading.Leviathan,chap.26 [143], pp. 322-323.62 Leviathan,chap.26 [145], p. 326.63 Leviathan,chap.26 [146], p. 327.64 Such alternativenstitutionalpossibilitieswere explored n detailby JeremyBentham; see Gerald J. Postema, Bentham and the Common Law Tradition(ClarendonPress:Oxford,1986).

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sovereign representative,hatis, the bearersof sovereignauthority.Hobbes says that the sovereign is entrusted with making "GoodLawes"but a good law is "not a JustLaw: for no Law can be Unjust... A goodLaw is thatwhich is Needfull,forthe Goodof thePeople,and withallPerspicuous".65While the sovereignis clearly the judge of what is both "need-full" and for the good of the people, and while Hobbesalso directssovereignsto be as clear as possible in making public theirjudg-ments about these issues throughthe law to those subject to thelaw, it must also be the case that judges have a role in bringingthe law into a perspicuousstate. In other words, perspicuousnessor publicity for Hobbes is not a matter ust of clear statementofwhat the law requiressubjectsto do, but of providinga reasonedjustificationof thatrequirement,n whose light what the law actu-ally requiresis to be understood:"ThePerspicuity,consistethnotso much in the words of the Law it self, as in a Declarationof theCauses,andMotives,for which it was made."66And in makingthelawperspicuous, udges are notparticularlydirected o a doctrineof"original ntent",a recoveryof what an actual egislatororgroupoflegislatorshadin mind.Rather,udges aresupposedto interprethelaw as if the legislators ntended o observe the laws of nature.67

65 Leviathan,chap.30 [181-182], pp. 387-388.66 Leviathan,chap.30 [182], pp. 388-389, atp. 388.67 Hobbes is a little ambiguouson this issue:Forit is not theLetter,but the Intendment,or Meaning;thatis to say,the authen-tique Interpretationf the Law (whichis in thesense of theLegislators), n whichthe nature of the Law consisteth;And thereforethe Intepretation f all Lawesdependethon theAuthoritySoveraign;andtheInterpretersan be none butthose,which the Soveraign(to whomonly the Subjectoweth obedience),shallappoint.For else, by the craft of an Interpreter,he Law may be made to bearea sense,contrary o that of the Soveraign;by which means the Interpreter ecomes theLegislator;Leviathan,Chap.26 [142-143], pp. 321-322.But Hobbes's concernhere is clearlywithjudicial usurpationof power,whichwill happenif judges think thatthe interpretation f the laws of naturedependson "thebooks of MorallPhilosophy"rather han the authorityof the sovereign.And at the same time he asserts that it is judges whose interpretations f the lawsof natureareauthentic,at least in particular ases, Leviathan,chap.26 [143], pp.322-323.

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DAVIDDYZENHAUSA useful example here comes from one on the key statutes

of the apartheid state, the GroupAreas Act of 1957. This Actclearly contemplateddifferentiationbetween racial groups in thatit provided hat areaswould be reserved ortheexclusiveownershipand/oroccupationof a particular roup;but therewas no statementof its objectwhichindicatedorimpliedthatthedifferentiationmightbe unequal.In Minister of the Interior v. Lockhat68(1961), the AppellateDivision, SouthAfrica's highest courtof appeal duringapartheid,was facedwith a challengeto thevalidityof a proclamationdividingthe city of Durban nto groupareason the groundthatwhites hadbeen given thebest areaswhile only thepoorerareas were availableto Indiansand that suitableaccomodation n these areas would notbe available or some time.Lockhat,anIndian,argued hattheeffectof the division was to discriminateto a substantialand thereforeunreasonabledegree againstIndiansand such unreasonablediscrim-ination had to be expresslyauthorizedby the enabling egislationtobe valid.In the Courtwhich first heard this challenge,69JudgeHenochs-berg acknowledgedthat the Act did contemplatesome degree of"differentiation". ut he said thathe could find no express author-ization in the statute of discriminationcoupled with partialityandinequality to a substantialdegree. He thus upheld the challengebecause, in the absence of specific authority n the statute to thecontrary, ommonlawpresumptions f equalityand reasonablenessmustprevail.He saidthat"theexerciseof apowertoproclaimgroupareascan and should ... be exercisedwithout the inevitable resultthatmembersof differentracesare treatedon a footingof partialityandinequalityto a substantialdegree".70Henochsberg'sdecision was taken on appeal to the AppellateDivision. Judge Holmes, in deliveringthe unanimousdecision oftheAppellateDivision,rejectedthechallenge.He acceptedthatthatthe power to discriminateunreasonablyhad to be given expresslyor by necessary implication.But thoughthe powerto discriminate

68 1961 (2) SA 587 (A).69 Lockhatv.Ministerof theInterior1960 (3) SA 765 (D).70 Ibid.,p. 786.

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unreasonablywas not expressly given in the Act, he thoughtthatitwas "clearly mplied":The GroupAreas Act representsa colossal social experimentand a long termpolicy. It necessarily involves the movementout of GroupAreas of numbersofpeople throughout he country.Parliamentmust have envisagedthatcompulsoryshifts of personsoccupyingcertain areaswould inevitablycause disruptionand,withinthe foreseeablefuture,substantialnequalities.Whetherall this will proveto be for the common weal of all the inhabitants s not for the Court to decide.... The question before this Court is the purely legal one whether this pieceof legislation impliedly authorises,towards the attainmentof its goal, the moreimmediateand foreseeablediscriminatory esultscomplainedof in this case. Inmy view, for the reason which I havegiven, it manifestlydoes.71

Holmes's reasoningseems Hobbesian in so far as he makes itclear that it is not a judge's role to make judgments about whatserves the "commonweal".Rather,ajudge shouldconfinehimselfto "purely egal" questions.But the oppositeis true.A judge, as wehave seen, insultshis sovereignwhen he ascribes to the sovereignthe intention to deal inequitably with his subjects. The Appel-late Division should have required,as Henochsbergdid, that thesovereignexplicitly stateanyintention o act inequitably.Further,once such an intention is stated, the sovereign hasdeclared that he does not understandhis task as promotingthehealth of the commonwealth n general,since he will prefercertaingroups.72In makingthatdeclaration,he undermineshis authorityempirically, because the disfavoured groups can no longer beexpectedto manifest the kind of moralpsychology which sustainssovereignauthority.At the same time, he undermineshis authorityconceptually- from the point of view of law itself - because the

71 Ministerof theInteriorv.Lockhat,p. 602.72 I leave aside here the questionabout what a Hobbesian udge shouldmakeof a "separatebutequal"doctrine.In Ministerof Posts and Telegraphsv.Rasool,1934 AD 167, the AppellateDivision, with one very strongdissent,upheldsucha doctrinewhen the Postmaster-Generaln the Transvaaldividedpost offices intosections for "Europeans" nd "non-Europeans".n threedecisions in the 1950s,the same Court, while not overrulingRasool, clearly indicated its view that aseparatebutequaldoctrineshould be requiredbyjudges to be explicitly stated nlegislationbecause it is a derogation romequality.See David Dyzenhaus,HardCases in WickedLegal Systems:SouthAfricanLaw in the Perspectiveof LegalPhilosophy, chapter3.

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sovereignhas put into questionthe prior obligationto obey the lawwhich is partof law's definition.And once this doubleaspectis seen, one can also see that it doesnot mattervery muchfor legal theorywhether,once the sovereignstates his intention to act inequitably, udges have a substantivereview authoritywhich permitsthem to strikedown the legislationor not. The detailsof such authoritywill dependon the institutionalhistoryof the particular egal order.But thatlegal orderitself is inissue is not in questioneven if the law thatputs it in issue remainson the statutebook.This accountmightmake Hobbesseem like a proto-Dworkinian,butmy claim is not that HobbesinventedDworkin'stheoryof adju-dication n 1651. Thatwould make nonsenseof Hobbes'soppositionto the common law traditionin which judges are taken to havea particularkind of substantivereview authority.Dworkinclearlybelongsto that tradition houghthe fact that he presupposesa back-dropof a writtenconstitution n much of his workmakes his theoryof judicial review even more ambitious than his more venerablepredecessors n thattradition, uch as Coke andHale.73My claim is ratherthat Hobbes supposesthat the basis for thelegitimacyof legal order is one which both gives structure o legal

73 My claim in the text is not in tension with the fact that Henochsbergdidrely on the common law of judicial review. It is quite significant,in my view,that Hobbes - the great opponent of the common law traditionin giving acatalogue of the values of legality also put forwardsome of the centralvaluesof that tradition,most notably,the principlesof natural ustice and of jurisdic-tionalboundarieswhich arethe mainstaysof the commonlaw of judicialreview.(See on related issues, RichardTuck, Natural Rights Theories: Their Originand Development Cambridge:CambridgeUniversityPress, 1998), p. 137, criti-cising J.G.A. Pocock, TheAncient Constitutionand the Feudal Law: A Studyof English Historical Thoughtin the SeventeenthCentury:A Reissue with aRetrospect (Cambridge:CambridgeUniversity Press, 1987).) But in confiningthoseprinciples o bringingsubstantiveudgmentsmadeelswhereinto the stateofperspicuity,Hobbeskept judges away fromthe usurpationof the legislativerolewhich comes about when the common law is conceivedas a law which firstandforemostprotectsacatalogueof substantive ights.Itmayeven be thatHobbes cansupporta limiteddoctrineof constitutionaladjudication,hat s one whichregardsconstitutional eview as legitimateas long as it confinesitself tojudgmentsaboutproportionality f meansadopted o implement egitimateobjectives,where whatis a legitimateobjective s decided- with few exceptions- legislatively.

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orderand which constrains udges in theirinterpretationf the law.But it also constrainssovereignty, hatis, if those who have powerwish to rule throughlaw, rather than by some other means, forexample, by decree and arbitraryexercises of power. Put differ-ently, and in Lon L. Fuller's terms, legal order is not mere orderor stability, t is a particularway of constructingorderwhichhas itsown internalor institutionalmoralityandconstraints.74As I will now explain,Hobbesprovidesus with a moralvocabu-lary for civil society, nothing of which is concealed from anysubject.75 t is a vocabularyof role, the role of sovereignty, he roleof thejudiciary,and the role of the good subject,all threeof whicharetransparentlyonnected to each other.76

IVThe idea of moralityof roles builds on links between severalpartsof Leviathan. The first link is between the fact that Hobbes takessovereignty by institutionat least as seriously as sovereignty byacquisitionand thefirstparagraph f chapter29, whereHobbestalksabout the way in which a Common-wealthcan be securedagainstperishingfrom"internalldiseases". He says there that if men aretoescape the state of nature hey need the "helpof a very able Archi-tect".Without such help, they will not make other than a "crasiebuilding,suchashardly astingoutof theirowntime,mustassuredlyfall uponthe heads of theirposterity".77

74 Fuller,TheMoralityof Law.75 For the "Straussian"thesis that Hobbes concealed his true meaning,reservingit for the select few, see Strauss,The Political Philosophy of Hobbes,chapter2; CarlSchmitt, TheLeviathan n the State Theory of ThomasHobbes:Meaningand Failureof a Political Symbol,trans.by George Schwab and EmaHilfstein (Westport,CT:GreenwoodPress, 1996), p, 26; Oakeshott,"TheMoralLife in the Writingsof ThomasHobbes",pp. 337-338.76 CompareFuller,TheMoralityof Law,pp. 204-207, esp. p. 206: "Ifrespectfortheprinciplesof legalityis essential to producesucha system,thenit certainlydoes not seem absurd o suggestthatthoseprinciplesconstitutea specialmoralityof role attaching o the office of law-makerandlaw-administrator."77 Leviathan,chap 29. [167], p. 363. Note thatthis paragraph ollows one ofthe few explicit mentionsof Leviathan n thetext, at the end of chapter28, whereHobbes talksof Leviathanas king of pride,and thensays that he will now set out

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DAVIDDYZENHAUSOutof that ink comes theideathatsovereigntyby institutionhas

to do not so much with creatingsovereigntyfrom the impossibleconditionsof the state of nature,as with theproperconstructionof asovereignlegal order with the designof institutions n such a wayas to fulfil the ultimate ends for which we want orderat all. Andthis idea tells us thatsovereigntyis notjust somethingthatspringsintobeing, like Hobbes'smushroommen,78butis a humancreationor artificewhich can be improvedas we go along, as long as thosechargedwith the task understandts goals anddutiesproperly.79The second link is between these passages and the passage inchapter29 whereHobbestalks aboutpublicconscience:

Therefore,thoughhe is that is subjectto no Civill Law, sinnethin all he doesagainsthis Conscience,becausehe has no otherruleto follow but his own reason;yet it is not so with him thatlives in a Common-wealth;because the Law is thepubliqueConscience,by which he hathalreadyundertaken o be guided.Other-wise in such diversity,as there is of privateConsciences, which are butprivateopinions,theCommon-wealthmust needsbe distracted,andno mandareto obeythe Soveraignpower,farther han t shall seem good in his own eyes.80I havealreadynoted thatHobbes reservesto the subjecttherighttobelieve that the sovereignis wrongon mattersof faith,although hesubjectmust submithis privatereasonto thepublic by confininghisbelief to his heart.81And I suggestedthat Hobbes must think thatthe same is true of a subject'ssense that a particularpositive law isa mistake,thatis, the subjectmust subordinatehis privatereason tothe reason of the sovereign.Thepassagejust quotedmightseem to conflict with this sugges-tion, since it says that the subject must take the law as a publicthe "Lawesof Naturewhichhe is boundto obey";Leviathan,chap28 [167-168],pp. 362-363. Hobbesdoes in this passage say that the sovereign's obligationtoobey arises because he should fear God.But he offers firstanotherreason,whichseems clearlyin itself sufficient:"Butbecausehe is mortall,andsubjectto decay,as all otherEarthlycreaturesare;..."; ibid.78 Hobbes,De Cive,chap.8, p. 205, para.1.79 It is the case thatHobbes,at the time of writingLeviathanwas not in pointof factconcernedwithcreatingorderout of nothingbut with a problemof "trans-itionaljustice"- the creation of orderduringan interregnumwhen there existssome basis for stability.80 Leviathan,chap.29 [168-169], p. 366.81 Leviathan,chap.38 [238], p. 478.

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HOBBESAND THELEGITIMACYOFLAWconscience. However,Hobbes is not talkingin thispassage about asubject'ssense of therightnessorwrongnessof aparticularaw,butof a subject'sunderstandingof the reasons which require generalobedience to law. As Hobbes tells us, one of the duties of sover-eignty is to instructsubjects"inthe EssentialRights(which aretheNaturall,andFundamentallLawes) of Soveraignty",an instructionwhich Hobbes seems optimisticabout- "there s no difficulty".82The understandingof these rights will yield the conclusion thateven if one strongly disagrees with a particular aw, the reasonswhich requiregeneral obedience to law requirethat one refrainsfromviolatingthe law.Once thatdistinction s in place, one can startto make sense ofthepassagein chapter21, in whichthewhole of Hobbes'sargumentin Leviathanmight otherwise seem to unravelsince is provides-wholly in contradictiono his intentions a "rebel'scatechism":No man is boundby the words themselves, either to kill himselfe, or any otherman;And consequently, hatthe Obligationa manmay sometimeshave,upontheCommandof the Soveraignto execute any dangerous,or dishonourableOffice,dependethnot on the Wordsof ourSubmission;but on the Intention;which is tobe understoodby the Endthereof.When thereforeourrefusallto obey, frustratestheEnd forwhich theSoveraigntywas ordained; henthere s no Liberty o refuse:otherwisethere is.83Thatis, if it is left to private udgmentto decidewhen the sovereignis frustratinghe end of sovereignty,then subjectscan disobey thelaw when it seems inconsistentwith theirsense of what best servesthe end of sovereignty.Hobbes'sargument,however,does notunravelunless thereasonsfor obedienceto law arelike a ladderwhich the subjectmustclimbonly to kick it away as he reaches the top, thus leaving him withno vocabulary o evaluatesovereigntyexcept at the limit when thesubject's ife is endangeredby the sovereign.Onthe contrary, hortof thatlimit the subjecthas no rightof resistance,but does have amoralvocabularywhich can be used to evaluatesovereignty.Any

82 Leviathan,chap.30 [177], p. 379. JohnAustin, in my view the truefounderof contemporary egal positivism, thought that Hobbes's optimism had beenproved wrong - see Austin, Lectures on Jurisprudence,2 vols., London, JohnMurray,5th edn. 1885, vol. i, 134.83 Leviathan,chap.21 [112], p. 269.

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HOBBESANDTHELEGITIMACYFLAWIn my view, this understandingof the judicial role helps toclarifyanimportant mbiguity n thegeneralargument f Leviathan.Hobbesgives to the subject herightto resist thesovereignwhenthesovereignthreatens he subjectwith seriousharmandhe says, as wehavejust seen, that if the sovereigncan no longer offer protectionto the subject, then the obligationof obedience ceases.87In boththese cases, he is often taken to be makinganempiricalrather hana conceptualor normativeclaim. It is not a matterof the subjectmakingajudgmentbut of findinghimself as a matterof fact in the

situationof an individual n the state of nature an individualwhohastherefore he full rightof nature. nmy view,however,Hobbes'sclaim is somewherebetween facts andnorms.A helpful image is Hobbes'sthought n chapter13 that the stateof war in the state of nature need not be actual fighting,but the"knowndispositionthereto", ust as the "natureof Foule weather,lyeth not in a showre or two of rain;but in an inclinationtheretoof many days together .. 88Thejudicialrole, thatis, in situationsin which the sovereignissues commandsthat are suspectin any ofthe ways discussed above is to alertthe commonwealth o the stormclouds on the horizon.This is quite a modest role for judges. It leaves to the rulerthe authority o decide how best to make life commodiousfor hissubjects.It does not say that the first virtueof political and legalinstitutions s justice, so thatprinciplesof justice give us an inde-pendent resource of liberal principles whose naturalguardianisthe judiciary.Instead, it says that the first virtue of political andlegal institutions is to provideus with peace and stability,so thatour ruler might make appropriate udgments about how best topromotecommodious living. But in order for us to recognise hisjudgmentsas appropriate, e has to govern through he mediumofthose institutions.The idea of the public conscience, institutionalised n the legalorder,gives no legallyrecognisedrightof resistance o thesubject.89But it does seek to makelegal order nto somethingwhichchannels

87 Hobbes, Leviathan,chap. 14 [69-70], p. 199, and the text to note 83 above.88 Leviathan,chap. 13 [62], p. 186.89 See Edward G. Andrew, "Hobbes on Conscience within the Law andWithout",CanadianJournalof Political Science 32 (1999), pp. 203-225.

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DAVIDDYZENHAUSpublic judgmentsaboutthe good in such a way that resistance isby andlargenot an option,morally speaking.Forthose who cannotappreciatehe moral ssues at stake n puttingsuch anorder nplace,and the moralobligationsone has once such an order is in place,there is always the argument hat it is at least in everyone's selfinterest to prefer order to chaos. But once one is in civil society,arguments rom self-interest are no longerrelevant- to thinkthatthey areis to be a "Foole".As David Gauthier has argued, the Foole differs from theordinarylaw breaker n not seeing the general reason for obedi-ence, which then means that his calculation of law-breaking s onedone purely in the language of privatereason.90However,whileGauthierargues convincinglythatin civil society private udgmentis subordinatedand rationality n some real way transformed,hefindshimselfstuckwith thedifficulty hatarisesfromsupposing hatthe sole basis for theobligationsof civil societyis privatereason.Forif the basis is privatereason alone, and obedience to law requiresthe continualexercise of reason(not its obliterationat the momentof entryto civil society), Hobbesunwittinglyprovidesthe basis forthe rebel'scatechism.

My interpretationseeks to escape this difficulty by givingprivatereason and self-interestan ancillary,even rhetoricalrole inLeviathan.And it suggeststhat Hobbes does notprovideagainsthisintentions he basis for a rebel's catechism.Hobbes does not seek toprovideus with a catalogueof rightsand liberties- the content ofpublicreason- which amount o constraintson sovereign authority.Rather,he gives us anaccountof the ruleof law in constitutingcivilsociety and it is the factthat one findsoneself in such a society thatprovidesone with thebasis for obedience.While Hobbes often puts forward the Hobbist claim that anyorder- any guaranteeof minimal peace and stability - is to bepreferredno matter he characterof its sovereignto the chaos of thestateof nature,his account of legal order s notHobbist.Inperhapsthe best knownpassage on this topic, he contraststhe "miserable"subjection o the "lusts,and other rregular assionsof him, or themthat have so unlimiteda Power in their hands"with the "dissolute

90 David Gauthier,"PublicReason",Social Philosophy 19-42 (1995), pp. 36-37; andsee Leviathan,chap. 15 [72-73], pp. 203-204.

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HOBBESANDTHELEGITIMACYFLAWconditionof masterlessemen,withoutsubjection o Lawes",arguingthat the formeris to be preferred o the latter.His arguments thatall "menareby natureprovidedof notablemultiplyingglasses (thatis theirPassions andSelf-love), throughwhich,everylittlepaymentappearetha great grievance;but are destituteof these prospectiveglasses (namely Morall and Civill Science,) to see a farreoff themiseries thathangoverthem,and cannot without suchpaymentsbeavoyded."91This argument s for those incapableof absorbing he lesson ofLeviathan,of masteringthe reasoningwhich laterin Leviathanhesays, as we have seen, there should be "no difficulty" n teachingto all subjects.92The argument s then a reiterationof Hobbes'sargument against the Foole. More important,however, is that aproperlyfunctioninglegal order is one in which individuals willnot be subjectto irregularusts andpassionsbut to the rule of law.And the rule of law is not instrumental, s contemporary ositivistshave it, to particularudgmentsabout the good madeby those whowield political power.It is not, as Fullerpointedout, a means for"managerial"direction, for channelling "one way projections ofauthority".Rather, t is the institutional xpressionof a relationshipof reciprocitybetween ruler andruled,or,as Hobbeshimselfputit,of the "mutuallRelation betweenProtectionand Obedience".93

91 Leviathan,chap. 18 [94], pp. 238-239.92 See text to note 82. Note that to say that Hobbes is puttingforward twoarguments,one for those who are obsessed with self-interest,and one for thosewho areparticipantsn the moralconversationof mankind,does not suggest thathe concealedhis truemeaning.As I indicatedabove,thepointof thefirstargumentis to give the self-interestedsorts anexplicit reason to get involved in the second,but if they do not accept that reasonthey will be coerced on the occasions whenself-interestedcalculation eads them to violate the law.93 See Fuller,TheMorality of Law, pp. 215-216 for the idea that legal orderis a co-operativeenterprisebetween rulerand subjectand for the quotation,seeLeviathan,"A Review, and Conclusion" [395-396], p. 728. I thus agree withDavid Gauthier hatin Leviathanwhen the subjectsauthorise he sovereigntheydo not surrender heirrights,but merely appointhim theiragent - see David P.Gauthier,The Logic of Leviathan:The Moral and Political Theory of ThomasHobbes (Oxford:ClarendonPress, 1969), pp. 120 ff. I suspect that Gauthier'sdifficulties in supportingthis claim, as pointed out for example in Hampton,Hobbes and the Social ContractTradition,pp. 114 ff., stem from the fact thathe (andHampton)start romthepremisethatself-interest s the foundationstoneof Hobbes'sargument.Objectionsto Gauthier'sargument ncludethat he turned

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DAVIDDYZENHAUSAs such,theruleof law is far shortof acompletetheoryof liberaljustice,butit is much morethanthe success over time of a "gunmansituationwrit large".94 t is a very particularway of achievingthecivil peace andstabilityrequiredbeforehighlycontested udgmentsabout substantive concerns - including issues of justice - can belegitimatelymade. And it is particularbecause it providesan insti-tutionalmoralityof rule following, of rule formation,and of ruleimplementation ndinterpretation,whichspeaksnot so much to thecontent of judgments,as to the way in which they must be framed

so as to sustainrather han subvertthe moralbasis of political andlegal order.95Universityof TorontoFacultyof Law78 Queen'sParkM5S 2C5Toronto,CanadaE-mail:[email protected]

Hobbes into Locke, which is againstthe grain of much else in Leviathan. Buton my account the constraintson the sovereign are not the "kick the bastardsout"constraintswhichLockeenvisages,but the constraints hatnecessarilyattendthe exercise of power through aw. It is these constraints hatexplain why thereis a mutual, ongoing relationshipbetween protection and obedience in civilsociety,andnotthecomplete subjection opowerwhich theHobbist nterpretationrequires.

94 Hart,"Positivismand the Separationof LawandMorals",p. 5995 One mightnaturallyraise a challenge here which if successful underminesthe argumentof the whole essay - thatthe constraints identify do not amountto a morality.But thatchallengeassumes a particular onceptionof morality, orexample,a liberal ist of individualrightsand liberties.AlthoughI will notdefendthis claim here,Hobbes'sconceptionof moralityseems muchcloser to what we

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DYZENHAUS_Hobbes and the Legitimacy of Law