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Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace
Published online by Cambridge University Press: 18 February 2020
Abstract
This paper explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.
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- Research Article
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- © The Author(s) 2020
Footnotes
This paper is long in coming and could not have even made it to a first draft without the patient, kind, and rigorous tutelage of Dennis Klimchuk. I also benefited greatly from the generous feedback of Brian Orend and Sean Bentzen on previous versions. Finally, I thank four anonymous reviewers for their thoughtful comments and critiques, and to the care and discretion of the editors who looked over various iterations of the paper.
References
1. Thomas Hobbes, Leviathan, ed by Edwin Curley (Hackett, 1994).
2. Ibid at 172.
3. Here, the concept of “public reason” is only taken to imply that some reasons are sharable and contestable in public fora. Not all conceptions of public reason necessarily capture Hobbes’s “in foro externo” or “in foro interno”. I thank an anonymous reviewer for this point. In particular, the phrase “public reason” calls Rawls to mind. The Rawlsian conception of public reason is narrower in scope, as it implies a system of common reason directed at the common good that all reasonable people would assent to under hypothetical conditions. See Rawls, John, “The Idea of Public Reason” in Political Liberalism (Columbia University Press, 2005)Google Scholar. The difficulty, of course, is that the Rawlsian conception of public reason depends on his depiction of political justice which is embedded in a particular (liberal) political culture. This can be reasonably contested by anyone whose political theory is constitutively sensitive to historical fluctuations between the public and the private—variations which were (e.g.) illustrated in Hannah Arendt, The Human Condition (University of Chicago Press, 1958) at 22-78. Still, if the reader prefers Rawls’s usage of the phrase “public reason”, then they may substitute all of my uses of the term with an appropriate neologism, like “public-facing reasons”.
4. Leslie Green, “Legal Positivism” (Spring 2018), online: The Stanford Encyclopedia of Philosophy https://plato.stanford.edu/archives/spr2018/entries/legal-positivism [https://perma.cc/6L2S-GNYA].
5. Wil Waluchow, “The Many Faces of Legal Positivism” (1998) 48:3 UTLJ 387.
6. Joseph Raz, “Authority and Justification” (1985) 14:1 Philosophy & Public Affairs 3.
7. Aquinas, Thomas, “Summa Theologica” vol 1-2 in Pegis, Anton C, ed, Basic Writings of Saint Thomas Aquinas (Random House, 1945).Google Scholar
8. Ibid at 2-1.96.1.; 2-1.96.6.
9. Ibid at 2-2.67.1.
10. The “focal meaning” reading owes in large part to Finnis, J, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011)Google Scholar. The “no law at all” reading is better attributed to Augustine, not Aquinas. Still, we need to make sense of Aquinas’s rather strong statement that tyranny is a perversion of law (Aquinas, supra note 7 at 2-1.95.2), and violations of divine law by human authorities (see note 52, below).
11. But beware the devil in the details. For example, as an anonymous reviewer pointed out, an act-utilitarian theory of law could be devised where the law just is whatever turns out to be the policy with best effects, and where the pursuit of such policies is the foundational moral commandment. The problem with this view is that act-utilitarianism does not contain any of the theoretical complexities of Thomism, and in particular, his explicit recognition of the powers of authorities and their function in a broader comprehensive teleological system. As a result, an act-utilitarian of this stripe would flirt with legal nihilism, since we lose all sense that the requirements of law make any appeal to authorities whatsoever. And it is worth noting, of course, that not even Bentham held such a view of legislation.
12. The phrase is meant to evoke the many tendencies in the history of philosophy of law that are consistent with themes found in the American pragmatist tradition. Here, I follow the programmatic expression of legal pragmatism introduced by Charles Barzun. See Charles L Barzun, “Three Forms of Legal Pragmatism” (2018) 95:5 Wash U Law Rev. The prefix, “wide”, is added to the phrase in order to distinguish Barzun’s sense from the received meaning in philosophy of law, which uses “legal pragmatism” to refer to the kind of depiction of law advocated by influential American jurist Richard Posner. Barzun includes Posner as a pragmatist, but makes the category more general, subsuming three strains of legal thought: instrumentalist (e.g., Richard Posner), quietist (e.g., Ronald Dworkin), and holist (e.g., David Souter).
13. The practical point of view should not be conflated with the much-discussed “practical difference thesis”, which is a criticism of inclusive positivism which holds that it handicaps the law from making a practical difference in the ways people deliberate. The practical point of view is a conditional restriction on which theories are viable; the practical difference thesis is a critical claim levied against a particular strain of positivism. They relate in the sense that, insofar as the practical difference thesis is true, inclusive positivism must be inconsistent with the practical point of view. See Scott Shapiro, “On Hart’s Way Out” (1998) 4:4 Legal Theory 469.
14. I take Deweyan remarks on law as especially important. Notably, Dewey suggests a kind of legal pragmatism that leans on satisficing consequentialism, not optimizing. See, especially, Dewey, John, The Public and its Problems (Swallow, 1927) at 53-57.Google Scholar
15. Raz, supra note 6.
16. Modern Russia is the clearest example of a jurisdiction where a distinction is actively observed between the theoretical law and practical law. See Kathryn Hendley, “Varieties of Legal Dualism: Making Sense of the Role of Law in Contemporary Russia” (2011-2012) 29:2 Wis Int’l LJ 233.
17. There are at least three senses in which scholars refer to legal dualism: as an approach to (A) general jurisprudence, (B) particular institutions, or (C) particular kinds of institutions. I am mainly interested in the lengths that Hobbes must go to avoid (A).
Advocates of (A) hold that, for some appreciably broad spectrum of political systems (e.g., the 21st century nation-state), each political system is governed by two systems of law which have potentially incommensurable standards of legal validity. So, for example, we might distinguish between the “higher” substantive requirements of a constitution when understood as a project in political justice, and the practical effects of law determined by sources. In this respect, legal dualism is a special case of legal pluralism. See Davies, Margaret, “Legal Pluralism” in Cane, Peter & Kritzer, Herbert M, eds, The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010).Google Scholar
Advocates of (B) only offer an observation about the normative features of particular, peculiar jurisdictions. For example, the Canadian legal system explicitly labels itself as a form of “legal dualism”, as it honors the traditions of civil and common law within separate provinces. See “Legal Dualism and Bilingual Bisystemism” (last modified 19 October 2019), online: Government of Canada https://www.justice.gc.ca/eng/csj-sjc/dualism-dualisme/index.html [https://perma.cc/8YPT-MZY8].
Advocates of (C) argue that particular kinds of political systems are best served by a dialectical conception of law. For example, John Rawls argues that the law of modern constitutional democracies is best explained by, and endorsed as, two overlapping but incommensurable normative systems operating over a single jurisdiction. Hence, Rawls argues that, if we are interested in judicial review of the court of last resort, then we ought to think of law as the principled interpretation of statutes and precedents, properly conceived through a relatively thick and substantial vision of public reason. In contrast, the “lower law” which applies customs and statutes according to convention and legislation is exclusively source-based. See Rawls, supra note 3.
18. Some might wonder how the legal dualist would confront patently unjust laws, e.g., a moral dissident in apartheid South Africa. In such cases, the law of words and the law of deeds seem to coincide, creating a single unjust system; for the Courts and the police all agree in segregation and subjection. Yet in these cases, the dissenting dualist can simply rebut the Court and legislature’s capacity to provide guidance with respect to the law-of-aspiration, while acknowledging that the apparent reality that the sovereign is generally effective in doing whatever it wants, and legal in that sense.
19. Hobbes, supra note 1 at 75.
20. Ibid at 177-81.
21. Thomas Hobbes, On the Citizen, ed by Richard Tuck & Michael Silverthorne (Cambridge University Press, 1998) at 33.
22. Ibid [emphasis in original].
23. Gary B Herbert, “The Non-Normative Nature of Hobbesian Natural Law” (2009) 22:1 Hobbes Studies 3.
24. Hobbes, supra note 1 at 174.
25. Ibid at 180-81.
26. Robert Ladenson, “In Defense of a Hobbesian Conception of Law” (1980) 9:2 Philosophy & Public Affairs 134 at 138-41; Joel Feinberg, “The Nature and Value of Rights” (1970) 4:4 J Value Inquiry 243 at 243-57.
27. For a challenge to the “contractualist” reading, see Sharon A Lloyd, “Duty Without Obligation” (2017) 30:2 Hobbes Studies 202.
28. Ladenson could concede this since he was interested in crafting a Hobbesian account, not Hobbes’s account.
29. Hobbes, supra note 1 at 182.
30. Ibid at 138.
31. Ibid at 112.
32. The “obligation to trust the judgment of our rulers” is a phrase from Skinner. See Skinner, Quentin, “On Trusting the Judgement of our Rulers” in Bourke, Richard & Geuss, Raymond, eds, Political Judgement: Essays for John Dunn (Cambridge University Press, 2009) 113.CrossRefGoogle Scholar
Trust plays a recurring and explicit role in Hobbes’s Leviathan, supra note 1 at ch 4, 5, 7, 10-12, 14, 15, 18-20, 22, 24, 30. For further discussion, see Deborah Baumgold, “‘Trust’ in Hobbes’s Political Thought” (2013) 41:6 Political Theory at 838.
33. These terms can be illustrated by the gradations of normative force that distinguish between “counsel” (pro tanto) and “command” (ultima facie). For edifying discussion, see Harrison, Ross, “The Equal Extent of Natural and Civil Law” in Dyzenhaus, David & Poole, Thomas, eds, Hobbes and the Law (Cambridge University Press, 2012).Google Scholar
34. This is not an exhaustive list. So, for example, Elinor Ostrom conceives of the idea of a “framework” as distinct from both models and theories. For her, a framework has the wider scope of a theory but lacks predictive power. Since the contrast with models and theories depends only on proper scope, for critical purposes, I run frameworks together with theories, though in other contexts they deserve to be given a separate treatment. See Ostrom, Elinor, Governing the Commons (Cambridge University Press, 2015) at 214-16.CrossRefGoogle Scholar
35. I take it that models are special cases of thought-experiments that are used to tell us something about broader systems with interacting parts. I thank an anonymous reviewer for pressing me to clarify this point.
36. Hobbes, supra note 1 at 97.
37. Ibid at 111-12.
38. Ibid at 109-10.
39. HLA Hart, The Concept of Law (Clarendon Press, 1961) at 50-78.
40. Hobbes, supra note 1 at 219-33.
41. Ibid at 146-47. This does not prevent us from noting that a sovereign is free to rule that it has breached its own will, and in that sense, there is nothing that prevents a subject from suing the sovereign for breach of the law. But it is only by the will of the sovereign that such admissions of fault in government are made, and only in light of the sovereign’s prudential self-obligations (what I call “sovereign self-care”). I thank an anonymous reviewer for this point. For Hobbes on publicity, and the ability to sue the sovereign, see Thomas Poole, “Hobbes on Law and Prerogative” in David Dyzenhaus & Thomas Poole, eds, Hobbes and the Law (Cambridge University Press, 2012).
42. Hobbes, supra note 1 at 86.
43. Ibid at 112.
44. Ibid at 77-78.
45. This is a point about the epistemology of Hobbes, emphasized by Harrison, supra note 33.
46. Henry Tudor, Political Myth (Macmillan, 1972) at 17, 125. Hobbes here contrasts with Schmitt, who waxes enthusiasm over the role of myth in politics and celebrates Leviathan’s sovereign as a mythological personage. See Schmitt, Carl, Political Theology, translated by Schwab, George (University of Chicago Press, 1985) at 47-48.Google Scholar
47. Morgan, Mary S, The World in the Model: How Economists Work and Think (Cambridge University Press, 2012) at 14-17.CrossRefGoogle Scholar
48. Hobbes, supra note 1 at 77-78.
49. Ibid at 107.
50. See Brett, Annabel S, Changes of State (Princeton, 2011) at 9, 71-72Google Scholar; Alan Cromartie, “Unwritten Law in Hobbesian Political Thought” (2000) 2:2 Brit J Politics & Int’l Relations 161 at 177.
51. Another way of revitalizing natural law theories is to think of them as attempts to construct agency in a collective context. See Brett’s Changes of State, above. See also Hiskes, Richard P, The Human Right to a Green Future (Cambridge, 2009) at 6-10.Google Scholar
52. Aquinas, supra note 7 at 2-1.93.3.2; 2-2.67.1.
53. This point is contested by Murphy, who asserts that “Aquinas… explicitly claims that precepts derived from the natural law do not attain the status of civil law until issued by the civil sovereign…”. See Murphy, Mark, “Was Hobbes a Legal Positivist?” (1995) 105:4Ethics 846 at 848.CrossRefGoogle Scholar
Murphy cites Aquinas, supra note 7 at 1-2.95.3. Unfortunately, that passage contains no reference to the sovereign will as necessary to law, nor any reference to the sovereign powers at all. Indeed, the passage is largely an attempt to simplify Isidore’s conception of positive law by articulating it in terms of its naturalistic role in fostering religion, discipline, and the common good.
As mentioned above, John Finnis argues that the natural law tradition is not on the hook for the view that an unjust law is no law at all, since most natural lawyers have been interested in the focal meaning of law. This is plausible. However, whatever we say about this, we have to take pains to recognize cases like Daniel and the Pharaohs as ones where the sovereign fails to make law (Aquinas, ibid at 2-2.67.1). For discussion, see John Finnis, supra note 10 at 354-66.
54. The upswing in the “natural Hobbes” reading owes, in large part, to the work of David Dyzenhaus. More recently, Michael Cuffaro also sees Hobbes as a natural law theorist. Similarly, Michael Sevel argues that Hobbes is a natural law theorist insofar as he is doing metaphysics of law. I think Hobbes’s fallibilism is one reason to question his classification as a natural lawyer. See David Dyzenhaus, “Hobbes and the Legitimacy of Law” (2001) 20:5 L & Phil 461; Sevel, Michael, “Hobbes: Patriarch of Legal Positivism, or Reinventor of Natural Law?” in Lloyd, SA, ed, The Bloomsbury Companion to Hobbes (Bloomsbury, 2013)Google Scholar; Michael Cuffaro, “On Thomas Hobbes’s Fallible Natural Law Theory” (2011) 28:2 History of Philosophical Q 175.
55. A point made eloquently, though perhaps unfairly, in James Boyle, “Thomas Hobbes and the Invented Tradition of Positivism: Reflections on Language, Power, and Essentialism” (1986) 135:3 U Pa L Rev 383 at 396-400.
56. Raz, Joseph, “Legal Positivism and the Sources of Law” in Kavanagh, Aileen & Oberdiek, John, eds, Arguing About Law (Routledge, 2009) at 117-21.Google Scholar
57. Hobbes, supra note 1 at 62-67.
58. Ibid at 67-71.
59. Ibid at 67.
60. Ibid at 67-71.
61. Ibid at 71-72.
62. Ibid at 99-100.
63. Aquinas, supra note 7 at 2-2.58.1.
64. Hobbes, supra note 1 at 99.
65. Ibid at 99-100.
66. Ibid at 79-100.
67. Dennis Klimchuk, “Hobbes on Equity” in David Dyzenhaus & Thomas Poole, eds, Hobbes and the Law (Cambridge University Press, 2012) at 165.
68. Hobbes, supra note 1 at 182.
69. Raz, supra note 56 at 117-21.
70. Sean Coyle, “Thomas Hobbes and the Intellectual Origins of Legal Positivism” (2003) 16:2 Can JL & Jur 243 at 243.
71. See John Gardner, “Legal Positivism: 5 ½ Myths” in Aileen Kavanagh & John Oberdiek, eds, Arguing About Law (Routledge, 2009).
72. Hart, supra note 39 at 53-54.
73. Hobbes, supra note 1 at 178.
74. Ibid at 219-20.
75. Ibid at 115-16.
76. But they are presented in Jules Coleman’s mode of thought as “identification rules”. This is reason to consider Coleman’s incorporationism as having closer affinities to wide legal pragmatism than to the positivist tradition. Still, at this point, classifications become controversial. For background, see Coleman, Jules, “Authority and Reason” In George, R, ed, The Autonomy of Law: Essays on Legal Positivism (Oxford University Press, 1996)Google Scholar; Waluchow, Wil, “Legal Positivism, Inclusive versus Exclusive” in Craig, E, ed, Routledge Encyclopedia of Philosophy (Routledge, 2001) from http://rep.tandf.test.semantico.net/article/T064.Google Scholar
77. Hobbes, supra note 1 at 160-65.
78. Ibid at 210-19.
79. Hobbes, supra note 1 at 119-22.
80. Ibid at 124-25.
81. Ibid at 115-18.
82. I do not mean to suggest that the two powers exist independently of each other, since it is entirely plausible to say that the entitlement of honors is just one of the many powers possessed by the sovereign in the pursuit of a common order. However, they both contribute the resources to the resolution of the first puzzle, at least, which is why I itemized them separately. I thank an anonymous reviewer for pressing me on this point.
83. These contrasts do not imply an exhaustive examination of the tensions in Hobbesian thought. So, I pass over questions related to meta-ethical theory generally, though some have been given a plausible treatment elsewhere: see George Duke, “Hobbes on Political Authority, Practical Reason and Truth” (2014) 33:605 Law & Phil 605.
84. Hobbes, supra note 1 at 80.
85. By “conservation principle”, I mean the natural lawyer’s maxim that things which are a means to the preservation of human life are to be protected, and obstacles to human life are to be avoided (Aquinas, supra note 7 at 1-2.94.2).
86. Hobbes, supra note 1 at 87-88. See also Susanne Sreedhar, Hobbes on Resistance (Cambridge University Press, 2010) at 53-88. Sreedhar discusses a robust range of potentially legitimate exercises of dissent (or “resistance rights”). Further, Sreedhar argues that Hobbes is best understood as permitting rebellions that are based on necessity and not ideology (ibid at 132-67). One might plausibly regard known collective emergencies in terms of resistance rights, so long as they are understood in this fashion.
87. Hobbes, supra note 1 at 87-88.
88. The aim of securing a healthy environment may be among the most basic of our political obligations. Indeed, many courts have recognized the validity of some such deontology. See David R Boyd, “The Implicit Constitutional Right to Live in a Healthy Environment” (2011) 20:2 Rev European Community & Int’l Envtl L 111 at 171-79; Hiskes, supra note 51 at 6-10.
89. Hobbes, supra note 1 at 295-98.
90. Ladenson, supra note 26 at 137.
91. Hobbes, supra note 1 at 79-80.
92. Hobbes, supra note 1 at 79. “Liberty” is now sometimes regarded as a close synonym to “privilege” in legal scholarship, especially in connection to Hohfeld’s famous taxonomy of juridical opposites and correlatives. But we should not assimilate Hobbesian terminology into the Hohfeldian classification scheme, since Hobbes seems to regard liberty as the “right of nature”, which is both a privilege and a power. For further discussion, see Wesley N Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917), online: Faculty Scholarship Series, Paper 4378 http://digitalcommons.law.yale.edu/fss_papers/4378 [https://perma.cc/TYS7-63XU]; Mark Andrews, “Hohfeld’s Cube” (1983) 16:3 Akron L Rev 471 at 473.
93. Hobbes, supra note 1 at 177.
94. Ibid at 185.
95. Ibid at 174-75.
96. Hobbes, supra note 1 at 174; discussion in Harrison, supra note 33. Though I am sympathetic to Harrison, I am unsure that MCT can be straightforwardly resolved in terms of an is/ought distinction, given the Janus-faced sovereign.
97. Kavka, Gregory, Hobbesian Moral and Political Theory (Princeton University Press, 1986) at 248-54.Google Scholar
98. Goldsmith, MM, “Hobbes on Law” in Sorell, Tom, ed, Cambridge Companion to Hobbes (Cambridge University Press, 1996) 274 at 274-304.CrossRefGoogle Scholar
99. Hobbes, supra note 1 at 182.
100. Klimchuk, supra note 67.
101. An anonymous reviewer helpfully suggested that we might wish to read Hobbes as really saying that judges may be inequitable, but never unjust. Given the evidence cited above, this is not clear. At best, we might think that a strong justice/equity distinction may have been Hobbes’s intent, and conclude that this was a slip of the pen. But even if that is the case, the distinction cannot be properly said to be a determinate implication of Leviathan, given what is directly entailed by what was explicitly said during a crucial passage.
102. Hobbes, supra note 1 at 113, 157.
103. Ibid at 181-82.
104. Ibid at 103-04.
105. Ibid at 182.
106. Sreedhar, supra note 86 at 53-88.
107. Klimchuk, supra note 67.
108. The approach of focusing exclusively on Leviathan has some built-in limitations. So, for example, Larry May might be right in suggesting that we better understand Hobbes by consulting the Dialogue. I thank an anonymous reviewer for this point. See May, Larry, Limiting Leviathan: Hobbes on Law and International Affairs (Oxford University Press, 2013).CrossRefGoogle Scholar