CONSENT, LEGITIMACY AND THE FOUNDATION OF POLITICAL AND
LEGAL AUTHORITY
David Dyzenhaus1
DRAFT
“But no one mans Reason, nor the Reason of any one number of men, makes the
certaintie; no more than an account is therefore well cast up, because a great many
men have unanimously approved it. And therfore, as when there is a controversy in
an account, the parties must by their own accord, set up for right Reason, the Reason
of some Arbitrator, or Judge, to whose sentence they will both stand, or their
controversie must either come to blowes, or be undecided, for want of a right
Reason constituted by Nature; so it is also in all debates of what kind soever; And
when men that think themselves wiser than all others, clamor and demand right
Reason for judge; yet seek no more, but that things should be determined, by no
other mens reason but their own, it is as intolerable in the society of men, as it is in
play after trump is turned, to use for trump on every occasion, that suite whereof
they have most in their hand”. Thomas Hobbes, Leviathan2
INTRODUCTION
Thomas Hobbes, the founder of legal positivism, argued that all de facto political authorities,
political authorities which as a matter of fact can enforce their rule, are legitimate. He also
argued that consent to political authority is the basis of legitimacy and thus that there is a
virtually unconditional obligation on legal subjects to obey the law. Joseph Raz, this
century’s leading legal positivist, argues both that de facto authorities are not necessarily
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legitimate and that legitimate authorities do not get their legitimacy from consent but from
their service to the autonomy of the individual. Hence, Raz argues, there is no general
obligation to obey the law. One should obey the law only if it serves one’s autonomy and
then one obeys it because of its content, not because it is the law.
Hobbes’s account of authority seems clearly authoritarian, while Raz’s seems better
suited to an era when individual conscience is considered to be the final arbiter of legitimacy
and we are suspicious of the state’s claim to be legitimate merely because it is powerful. In
addition, while consent-based theories of legitimacy used to dominate liberal political theory,
Raz and many other political philosophers today deny any central role for consent. Claims
about the consent of those subject to the law to its rule usually turn out to be claims about
hypothetical consent--what individuals would consent to if only they were reasonable, or
claims about what the majority wants regardless of what they want, or claims which infer
consent from passivity or non-resistance over time. Thus, we might also prefer an account of
legitimacy that does not depend on consent and so does not provide a basis for a general
claim about the obligation of legal subjects to obey the law, even when the law does not
serve their interests.
Despite these fundamental differences between Hobbes and Raz, there are some
significant similarities. They both offer secular accounts of the authority of law and both
regard the idea that authority must claim to be legitimate as entailed in the very claim to be
an authority.3 Most significantly, they both place the image of an arbitrator to whom
individuals submit a dispute at the centre of their accounts of authority. The passage from
Leviathan in the epigraph to this paper comes from an early chapter, and is presented by
Hobbes as the key to solving the central puzzle of Leviathan: Given that individuals will often
radically disagree about right and wrong, and that individuals are the the best judges of right
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and wrong for themselves, how can we achieve an authoritative settlement of disputes about
right and wrong while maintaining the premise that individuals are the best judges. Similarly,
as we will see, Raz regards the example of submission to arbitration as essential to
understanding how authority and individual autonomy are not in conflict. In other words,
both suggest that if we want to understand the concept of authority, we must see what is
involved in the decision by individuals to submit a disagreement they cannot themselves
resolve to an arbitrator, thus surrendering their autonomy to judge for themselves to a third
party.
I will argue that Hobbes’s account of authority is superior to Raz’s. Hobbes’s idea of
consent simply describes a relationship between sovereign and subject in which there is
some relationship of reciprocity between the two. To maintain that relationship, the
sovereign’s exercise of authority must respect criteria internal to legal order that are
constitutive of legitimate authority just because they maintain an appropriate relationship
between sovereign and subject. Hobbes, then, contrary to his reputation as an authoritarian,
and perhaps even his reputation as a legal positivist, maintains a connection between law and
the legitimating conditions of its authority which will tend to serve the interests of those
subject to the law. Raz’s account of authority, in contrast, turns out to be authoritarian at
least in the sense that it detaches law from the internal legitimating conditions of its authority
and replaces these internal conditions with the external ones supplied by his political
philosophy. The result is that law has authority, and will necessarily claim legitimate
authority, even when it does not serve the interests of the subject.
Finally, I will argue that Hobbes’s account of authority is well equipped to cope with
a problem on which critics of liberalism often claim it founders. I have in mind here the
problem of the very foundation of authority. Critics of liberalism often assert that claims
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about consent are but one version of the kind of camouflage liberalism needs in its bid to
impose its conception of the good on politics while maintaining that there is no imposition
because its values are universal. They charge that liberalism, like any political ideology, has a
set of preferred fundamental values. But the content of these values cannot be established in
advance by consent, which is why consent usually turns out to be hypothetical in liberal
theory. The values are what reasonable individuals would agree upon and thus consent to,
but reasonableness turns out to require agreement with these values. This vicious circularity
means that liberalism is at a loss when it comes to explaining the foundation of political
authority—how authority is constituted in the first place. Liberalism clearly has an idea of
what values it wants in the legal constitution, in the sense of a bill of rights, but cannot
explain the origin of the authority of the constitution.4
As we will already know, Raz does not rely on consent in his account of legitimate
authority. For Raz, a political authority is legitimate when and only when it serves the
interests of those subject to it and those conditions are established by a liberal account of
individual autonomy, that is, by philosophical argument. This strategy will not, of course,
satisfy liberalism’s critics, who often suppose that such arguments are just another form of
camouflage for ideology. I am not, however, concerned in my paper with this point but only
with the fact that Raz’s account of legitimacy drops out of his account of the authority of
law in such a way that he is unable to account for the foundation of legal authority.
In contrast, Hobbes does explain the foundation of both political and legal authority
in a way that tells us why authority is legitimate. His explanation is somewhat paradoxical. It
requires appreciating both that the origins of all political power likely lie in a naked grab of
power and that to be successful as an authority, such powers have to comply with conditions
that render them legitimate. Moreover, compliance with these conditions establishes a deep
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connection between political power and legal authority, on the one hand, and between legal
authority and the interests of legal subjects, on the other. In order to convey its judgments
about the good in an authoritative fashion, a political power has to rule through law; it has to
manifest itself as a legal authority. And ruling through law constrains power in such a way as
to serve the interests of legal subjects.
I will first set up the standard view of Hobbes’s account of authority—that Hobbes
presents an authoritarian understanding of authority. This view is known as Hobbism, after
the name given to the doctrines of those among his contemporaries who understood his
account in just this way and accepted it as right. I will then show how Raz understands
authority in much the same way, but attempts to defang Hobbism of its authoritarian
elements by insisting that legal subjects are under no general obligation to obey the law.
However, Raz’s attempt fails and, or so I will argue, the best response to Hobbism is to be
found in Hobbes himself.
THE HOBBIST ACCOUNT OF AUTHORITY
Hobbes notoriously put forward the following two contradictory arguments. First, in order
for individuals to make the transition from the chaos of the state of nature to the peace and
order of civil society they had to agree with each other to obey the commands of an all
powerful sovereign—the Leviathan. That agreement brings the state into existence. The
state achieves personality through, is represented by, the sovereign, an individual or body of
individuals. In representing the state, the sovereign also represents all parties to the
agreement, so that they necessarily consent to/authorize/own all of his actions. The
sovereign himself (Hobbes prefers monarchy to democracy and naturally thinks of the
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sovereign as male) is not a party to the agreement and so is not bound by it. He is under a
duty to do his best to serve his subjects’ interests, but his judgment as to what is best is
definitive. Hobbes calls this process sovereignty by institution, which I will refer to as SBI.
Secondly, Hobbes argues that anyone who enters into an agreement in the state of
nature betrays himself because agreements in the state of nature are unenforceable. Indeed,
part of what makes the state of nature a miserable chaos is the impossibility of enforceable
agreement due to the absence of a sovereign who can guarantee reciprocal performance.
Hence, it seems that SBI is impossible on Hobbes’s own explicit terms. Individuals need to
enter into an agreement in order to constitute a sovereign. But they need a sovereign in
order to enter into an agreement.
One way to understand this altogether explicit contradiction is by thinking of SBI as
a thought experiment, designed to explain why reasonable individuals should appreciate that
they can be taken to consent to the authority of the sovereign who in fact rules over them.
In other words, consent in Hobbes is really hypothetical. It cannot constitute sovereignty.
Rather, consent is shorthand for an argument about why individuals should regard de facto
authorities as legitimate. Indeed, the idea of consent might seem worse than hypothetical—it
might seem downright misleading, given Hobbes’s argument that fear as the motive for
consent to sovereign authority does not vitiate that consent. He has to argue that, since in
the state of nature the individuals are depicted as impelled onto the path of agreement by
fear of each other. Moreover, Hobbes often emphasizes that the sovereign’s omnipotence is
vital to maintaining his authority, because omnipotence is required in order to maintain the
requisite attitude of awe on the part of the subjects. Finally, Hobbes sketches another mode
of sovereignty, sovereignty by acquisition or SBA, which comes about when an individual
who was not subject to a sovereign is conquered by that sovereign and decides to live in
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subjection to him. SBA thus also comes about through fear, though this time of an existing
sovereign. Another difference between SBI and SBA is that Hobbes is prepared to concede
that one might think of the relationship in SBA between sovereign and subject as brought
about by an agreement between the two, though he emphasizes that this agreement is
extinguished once the individual becomes a subject. However, Hobbes emphasizes that SBA
is as legitimate a mode of sovereignty as SBI and the subject consents to the acts of his new
sovereign in exactly the way that subjects consent in SBI.
The contradiction in the account of SBI is not then the only problem Hobbes faces
and there are more besides. There is also the fact that his audience is required to accept as
rational an argument that they should subject themselves to the unrestrained judgment of the
sovereign: they should see that, however obnoxious they perceive his judgments to be, the
rule of any sovereign is preferable to the complete insecurity of the state of nature. Indeed,
they must act as if they regard all judgments of the sovereign as legitimate, as the product of
right reason or the correct appreciation of their interests.
The only exception Hobbes seems prepared to make is that a subject is entitled to
resist the sovereign when the sovereign threatens the subject’s life. It might seem that
Hobbes is forced to make this exception because it is the desire to preserve life that puts
individuals in the state of nature onto the ladder of rationality that guides the process of SBI.
Put differently, once individuals have reached the top of the ladder of rationality--the point
where atomized individuals transform into subjects--they surrender to the sovereign the right
they enjoyed in the state of nature to determine the good for themselves, and thus kick the
ladder away, with the exception of this particular right of resistance.
The story is somewhat complicated by the fact that Hobbes does say that subjects
are entitled to disagree with the sovereign’s judgments as long as they keep their
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disagreement to themselves and by the fact that subjects have the liberty to determine the
good for themselves in so far as the sovereign does not command them otherwise.
Nevertheless, the conclusion is clear that, subject to these qualifications, the duty to obey the
law, whatever its content, is general. It seems then that subjects authorize the sovereign to
do as he pleases. They give him, as administrative lawyers say, an unfettered discretion.
This view of Hobbes is strongly supported by the distinguished scholar, Quentin
Skinner. In his essay on “The Purely Artificial Person of the State”, Skinner traces Hobbes’s
hesitations in his bid to comprehend what it means for the state to have personality. Hobbes
has a lot invested in this bid, since the idea of Leviathan is meant to evoke awe in those
subject to the state’s authority, even as they understand that the state is an artifice--a
construction of individuals; indeed, it is the construction of the individuals subject to it.5
Skinner suggests that the key to understanding Hobbes’s account of authority is the
line in the Introduction to Leviathan where Hobbes states his aspiration to show how we
might pass unwounded between the opposing swords of those who “contend on one side
for too great liberty, and on the other side for too much authority”.6 The latter are those
who argue that sovereigns govern by divine right. The former are those who argue that
because consent is the basis of authority, when subjects withdraw their consent, the
sovereign loses authority.
According to Skinner, Hobbes agrees that the basis is consent. But Skinner suggests
thinks that in authorizing the state, individuals place themselves “under an absolute
obligation not to interfere with the sovereign in the exercise of the rights they have
transferred to him. The sovereign acquires complete discretion and absolute power to decide
what shall be done to preserve the safety and contentment of every subject under his
charge”.7 Indeed, it would be self-contradictory for a subject to refuse to “own” the “public
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acts” of the sovereign. “The concept of the political covenant is not a means of limiting the
powers of the crown; properly understood, it shows that the powers of the crown have no
limits at all”.8
Skinner does admit that his own account of Hobbes’s theory of political obligation
might make Hobbes seem too much a defender of “de facto sovereignty”, that is, a Hobbist.9
The problem he sees for such an account is, of course, that it trivializes the emphasis
Hobbes want to put on consent, especially in his claim that SBA involves consent even
under the most dire conditions. Put differently, Hobbism--which infers absolute authority
from absolute power--does not take into account the fact that Hobbes finds himself
compelled to show what might make power a priori legitimate, that is, what makes X an
authority, someone who wields what Hobbes calls in the Introduction to Leviathan “just
Power”.
Here it is useful to consider Kinch Hoekstra’s distinction between a “de facto theory
of obligation” and a “de facto theory of authority”.10 The former has it that subjects are
obligated to obey the holders of power even though their rule is not de jure, that is, rightful or
legitimate, while the latter has it that possession of de facto power is by itself sufficient for de
jure authority. As he points out, the “obligation to obey a government is in principle
independent of its legitimacy”.11 Hobbes rejects the idea that there can be an obligation to
obey without a corresponding right to rule and so does not fall into the de facto theory of
obligation camp. He seems therefore to be a de facto theorist of authority but he does not
argue, as other such theorists do, that de jure authority derives immediately from de facto
power. As we have seen, he insists that even in the case when an individual is conquered by a
sovereign, the individual is obligated to obey that sovereign if and only if the individual
consents to the sovereign’s protection.12 However, as Hoekstra emphasizes, Hobbes also
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“repeatedly says that the right of the sovereign can arise from mere power”.13 The solution
to this contradiction is, he proposes, the idea of “attributed” or “tacit” consent, that is,
respectively, either what I called earlier, hypothetical consent and consent inferred from
passivity or non-resistance. Hoekstra then remarks that if “tacit and attributed consent count
as consent, then [Hobbes] … may be considered a thoroughgoing consent theorist. If they
do not, then he is, after all, a de facto theorist of authority of a particular kind”.14
Hoekstra does not specify this kind. All he says is that an “assimilation of Hobbes to
de facto theory will be misleading unless it is clear that he is not a de facto theorist of obligation,
and that he argues that de facto powers are de jure only via what he calls consent … An
assimilation of Hobbes’s view to consent theory will not be helpful unless what he means by
consent is understood; and such an understanding precludes a complete disentanglement
from the de facto theory of authority”.15
Hoekstra is on to something important here but he seems to be content for the
moment with stating the puzzle of Hobbes’s account of authority without doing more than
specifying the broad outline of its solution. The outline is however very useful. It tells us that
Hobbes was convinced that right does follow from might, but only if consent plays a role.
But it is not, as Hoekstra puts it, that possession of de facto power is by itself sufficient for de
jure authority. Rather, it is the choice of one with de facto power to rule through law that
brings de jure or legitimate authority. For the choice to rule as an authority rather than by
dint of sheer superior power, the ability to enforce one’s preferences against others because
one is stronger, is a choice to rule by constraints which go some way to legitimating one’s
rule. The legitimacy of de facto authority derives then from factors intrinsic to the practice of
authority and these will be present when one who has political power chooses to rule
through law. This argument is best appreciated against the backdrop of what is perhaps the
10
most influential account of authority today, that offered by Joseph Raz. As we will see, Raz
introduces into the analysis of authority an element which requires that law becomes the
mere instrument of power rather than a distinct mode of exercising power. It is that element
that leads to Hobbism but, as I will show in the subsequent section, Hobbes rejected
precisely that element.
RAZ ON AUTHORITY
In Raz’s first major essay on authority, he identifies two kinds of authority--legitimate and de
facto. The latter either claims to be legitimate or is believed to be so and is “effective in
imposing its will on many over whom it claims authority, perhaps because its claim to
legitimacy is recognized by many of its subjects.”16 What distinguishes authoritative
directives is, Raz says, their “special peremptory status” and he poses the question whether
authority involves a surrender of judgment such that acceptance of authority is inconsistent
with one’s status as an autonomous moral agent.
Raz deploys the example of submission to an arbitrator in order to answer that
question. The parties have to do what the arbitrator decides because he “says so”. But the
arbitrator’s reasons are meant to be based on reasons which apply to the case. His decision
should reflect such reasons. These reasons are therefore “dependent reasons”. However,
even though the decision should reflect these reasons, it does not have to do so. For the
decision is also meant to “replace the reasons on which it depends.” A reason which replaces
another in this way is a “pre-emptive reason”. It is not absolute. If arbitrator was bribed,
then one may ignore the decision. But the point is that “reasons that could have been relied
upon to justify action before his decision cannot be relied upon once the decision is given.”
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Dependence and pre-emptiveness are, Raz says, “intimately connected”. If disputants later
rely on reasons which are the basis of the arbitrator’s decision, they “defeat the very point
and purpose of the arbitration”.17
The question then arises whether the example of the arbitrator can be applied to
other authorities, for example, judges. The difference seems to be that legislative authorities
differ from adjudicative authorities because they create “new reasons”. But Raz does not
accept that there is this difference because the legislature is, in his view, supposed to legislate
only those duties that already apply to subjects.
So not only do we have the “dependence thesis” and the “pre-emption thesis”, but
also the “normal justification thesis”: the subject is “likely better to comply with reasons
which apply to him” if he “accepts the directives of the … authority as authoritatively
binding, and tries to follow them, than if he tries to follow the reasons that apply to him
directly.” The dependence thesis and the normal justification thesis articulate the “service
conception of authority”. Authorities mediate between “people and the right reasons which
apply to them”, so that the authority judges and pronounces what they ought to do
according to right reason. The people on their part take their cue from the authority whose
pronouncements replace for them the force of the dependent reasons. This last implication
of the service conception is made explicit in the pre-emption thesis. The mediating role of
authority cannot be carried out if its subjects do not guide their actions by its instructions
instead of by the reasons on which they are supposed to depend.”18
Raz is emphatic that his approach to authority does not imply “blind obedience to
authority”. “Acceptance of authority has to be justified, and this normally means meeting the
conditions set in the justification thesis.” So pre-empted reasons have a role in justifying the
authority’s claim to be such, but once that “level has been passed and we are concerned with
12
particular action, dependent reasons are replaced by authoritative directives.” Authorities
have then a limited role. They are not there to introduce new and independent
considerations, “though when they make a mistake and issue the wrong decrees they do
precisely that”.19
Raz argues that this account of authority applies to legal authority. All legal systems
that are in force have de facto authority. That “entails” that they claim legitimate authority
even if they lack it altogether or for the most part. There are, he suggests, two ways in which
one can fail to have authority. The first is that the “moral or normative conditions for one’s
directives being authoritative are absent” because the normal justification is unavailable or is
outweighed by conflicting reasons or because the “non-moral or nor non-normative,
prerequisites of authority” are absent, for example, that “one cannot communicate with
others”. A legal system might lack legitimate authority, but it must possess all the other
attributes of an authority which would make it in principle capable of “possessing the
requisite moral properties of authority.” Thus he says that Nazi rules differ from volcanoes
in that they might not be authoritatively binding, but they are the sort of thing that can be
authoritatively binding, whereas statements about volcanoes cannot”.20
I believe that this point creates an important ambiguity in Raz’s account of authority.
For the most part he talks as if there are de facto authorities which claim legitimacy but do not
necessarily have it. For example: “I will assume that necessarily law, every legal system which
is in force anywhere, has de facto authority”.21 That is, if one has the non-moral attributes of
authority, one is a de facto authority, however morally illegitimate one is. One could on this
view be a legal authority but not a moral authority. But at this point he seems to say that
legitimacy is a necessary condition to be an authority at all, so that it is a misnomer to talk of
13
an illegitimate legal authority since such a being is best described as not having authority, but
only as having the non-moral attributes of authority.
In my view, this ambiguity becomes worse when Raz goes onto claim that the
the attributes of authority support the positivist understanding of law. In fact he starts the
essay by described it as a continuation of HLA Hart’s positivist project of demythologizing
law in order to instill rational critical attitudes in legal subjects. According to Raz, one who
participates in this project answers no both to the question whether a rule is a rule of law
because it is morally binding and to the question whether a rule can ever fail to be law on the
ground that it is morally unacceptable.22 Raz defends was he thinks of as the central thesis of
legal positivism, which he calls the “sources thesis”--law is source-based if its existence can
be identified by reference to social facts alone, without resort to any evaluative argument.
That defence, he says, “turns on the nature of authority”, which has “implications” relevant
to “our understanding of law”.23
The sources thesis is required because of the two features that follow from the
peremptory nature of authority. Law is “a system of directives, and it is authoritative if and
only if its directives are authoritatively binding.” But it is binding, first, only if the directive
is or is presented as “someone’s view of how its subjects ought to behave”. “Second, it must
be possible to identify the directive as being issued by the … authority without relying on
reasons or considerations on which the directive purports to adjudicate.”24 Both features
reflect the mediating role of authority. First, the instruction must purport to reflect the
authority’s judgment about how we ought to act. Second, a “decision is serviceable only if it
can be identified by means other than the considerations the weight and outcome of which it
was meant to settle.”25
14
Thus Raz argues against Ronald Dworkin that his theory of law fails because it
requires that what law is identified by asking what is the best moral justification of relevant
legal materials to any question of law. While Raz says that he is uncomfortable with some of
the implications he considers follows from Dworkin’s theory, his reason for dismissing it in
the context of an account of authority is that the theory is inconsistent with two necessary
features of law as authoritative: first, that the law must always contain a judgment of some
legal authority; second, that, in working out what the law requires, one may not rely on the
considerations which the law was meant to settle. That is, Dworkin cannot account for the
mediating role of authority.26
So the account of authority is established as a matter of conceptual, not normative
argument.27 Authorities necessarily claim legitimacy but do not cease to be authoritative
merely because they lack legitimacy. Whether or not they are both authoritative and
legitimate depends on a normative argument, which Raz summarises as follows. The state
can and often does make judgments that interfere with one’s autonomy. Consent to the
state’s authority has to be limited to be consistent with autonomy. The state’s authority will
be legitimate only when it is exercised in such a way as to serve our interest in having the
best decisions–the first condition of legitimacy-and a further interest in having control over
decisions where it is more important for one to make them and be wrong then for another
to make them and be right–the second condition of legitimacy. But a state that meets these
two conditions is the legitimate, so a theory of legitimacy does not need to rely on the idea
of consent, except as a second source of strengthening the bond between subject and
government.28
The account of authority in combination with the normative argument about
legitimacy have two important implications, both of which serve to distinguish Raz’s account
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of authority from Hobbes. First, the role of consent in political theory is in Raz “only
marginal and secondary”.29 Consent cannot make legitimate a government that fails to meet
the two conditions of legitimacy. However, it does, he says, have an intrinsic value, which is
at the “heart of the connection between consent and authority”. Consent has an expressive
value if it expresses our attitude of trust. The relationship of trust already exists, but the
consent strengthens it, for example, through an oath of loyalty on naturalization or oaths of
office. But consent to government can therefore play this role only when the two conditions
of legitimacy are satisfied or nearly satisfied.30 “Consent represents merely one end of the
spectrum in the myriad of processes and actions that lead to the formation of and that
express ones attitude of trust in one’s government. It represents the deliberate and relatively
formal end of the spectrum.”31
The second implication is that there is no general obligation to obey the law, even in
a just or legitimate state. Indeed , he argues that there is a paradox in the claim that there is
an obligation to obey the law even in a just state, because in such a state the laws will be just
so it is the content of the law, not that they are laws, that grounds the obligation to obey.32
He does acknowledge that the existence of law can make a moral difference, that is, a
difference beyond bringing into line those who would otherwise fail to live up to their moral
obligations, for example, the moral obligation not to hurt others. It makes a difference in
those cases where the judgment of government experts is more reliable than the subject’s,
for example, health and safety regulations. It makes a difference in situations where my living
up to my obligations would make no difference, since everyone must in order to make that
difference; for example, pollution. And it also makes a difference in that one can argue that
one should obey the law even if a particular law offends one, because one should not
undermine a general attitude of respect for the law in a just state. But none of these cases
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can support a general obligation to obey the law. In the first, one would not have such an
obligation if one’s knowledge were in fact superior to the experts. In the second, the law
seeks to solve coordination problems, but its solution might not be successful or sufficient.
In the third, everything depends on the facts, since breaking one law might have no effect at
all on the general attitude of respect for the law.
He then concludes, in line with his argument about consent, that an attitude of
respect for the law might arise through one’s relationship with one’s political community, in
the same way as that attitude develops in the context of personal relationships. This kind of
obligation to obey is “part of a duty of loyalty to the community”, but it is a “semi-voluntary
obligation, because one has no moral duty to identify with this community. It is founded on
“non-instrumental considerations, for it constitutes an attitude of belonging which has
intrinsic value, if addressed to an appropriate object. Vindicating its existence does not,
therefore, establish the existence of a general obligation to obey the law.” Since we no longer
live in homogeneous societies, we can no longer accept the view of the “fathers of modern
political theory … that such obligations were indeed voluntarily undertaken.”33
RAZ AND HOBBES COMPARED
“And thus I have brought to an end my Discourse … without other designe, than to
set before mens eyes the mutuall Relation between Protection and Obedience; of
which the condition of Humane Nature, and the Laws Divine, (both Naturall and
Positive) require an inviolable observation”.34 Hobbes
As we can see, Hobbes and Raz seem to agree on much. They agree that de facto authorities
will always claim to be legitimate authorities. They regard law as the institutional expression
of political authority and, because of Hobbes’s reputation as a legal positivist, they might
17
seem to agree that law has to be understood along lines indicated by the sources thesis. (The
nature of authority requires that the content of authoritative judgments be determinable in
line with such a thesis.) Both also adopt the service conception of authority--that the claim
to legitimacy is a claim that obeying the authority will serve one’s interests better than if one
made all one’s decisions for oneself. Finally, both see the problem of authority as one about
the autonomy of the individual and the surrender of judgment.35
However, they also disagree. Hobbes seems to regard the distinction between de facto
and legitimate authority as spurious–a de facto authority’s claim to be legitimate is always
justified. He also wants to convince those subject to authority that they should see that the
claim is justified because they have consented to the sovereign’s authority. Because of the
claim that there is no distinction, his theory seems potentially authoritarian–the subject is
morally bound to act in accordance with the sovereign’s view of right reason, even when it is
clear that the sovereign’s view is wrong. Put differently, as long as a law meets the criteria of
validity adopted by a particular legal order, that law is morally as well as legally obliging. For
Raz, the stance of the subject should always be one which recognises that moral and legal
obligation often do not coincide, so that individual conscience decides whether or not to
obey the law, (subject to the points about the cases where the law makes a moral difference
in a just state).
But notice how Raz detaches de facto authority from the normal justification thesis in
ways that Hobbes does not. If we think of Hobbes as arguing for the service which authority
performs for individual autonomy, it is the case that Hobbes does set some clear limits on
authority, most notably in the right of the subject to resist the sovereign. Here an important
insight can be gleaned from Yves Charles Zarka, who argues that the right of resistance is an
“absolutely inalienable human right” which derives from the “fundamental ethical principle”
18
of the right of nature, the right to do whatever it takes to secure one’s survival.36 As he
points out, the right is not confined to that which can put one’s life directly in danger: it
includes the right to resist those who attempt to cause us injury or imprison us, to prevent us
from benefiting from “air, movement, or safe passage from one place to another”, and
anyone who seeks to have us testify against ourselves or against anyone “by whose
Condemnation a man falls into misery; as of a Father, Wife or Benfactor”. Finally, because
of its inalienability, the right cannot be transferred to the sovereign. “Within the state, the
right of resistance constitutes the sphere of human rights in whose name the individual can
always legitimately oppose the political power”.37
Zarka suggests that it follows from these remarks that the right of resistance does
not refer simply to the private dimension of the individual. It has “political implications, a
public dimension, which he describes as the “the proper sphere on which the political power
cannot encroach”.38 And he thinks that there emerges from the right, the “outline … of a
figure of the political subject which is very different from that of the submitted subject, since
the individual begins to constitute a subject from the moment he resists power”.39
Zarka’s remarks need one small but important qualification and then, following from
that qualification, a large and equally important addition. The qualification arises because the
right of resistance does not mark a sphere on which political power “cannot” encroach.
Indeed, as Zarka himself points out, the difficulty for his analysis is that the subjective right
of resistance of the subject is matched by the right, that is, not only the power, of the
sovereign, to inflict punishment. And as he recognises, penal law is a huge problem for
Hobbes given the right of resistance.40 This problem Hobbes attempts to resolve by
explaining the sovereign’s right to punish as deriving from the sovereign’s own right of
nature. When it comes to punishment, the sovereign and the subject face each other as in a
19
state of nature, where right matches right and one can predict that the superior power of the
sovereign will triumph. It follows that the right of resistance marks a sphere where the
sovereign can encroach on the individual, but he encroaches as an exercise of sheer power
not authority.
The addition arises because, armed with the distinction between sheer power and
authority, we can find better understand another aspect of Hobbes’s concept of the public
sphere, what he calls the “publique Conscience” of the law.41 Hobbes is quite clear that there
are internal constraints of legality on sovereign power and these are listed in the catalogue of
the laws of nature.42 He argues that there are necessarily internal checks on legal authority—
the law-maker’s judgment must be representable by his officials as consistent with the laws
of nature. Indeed, to say that these are checks somewhat distorts Hobbes’s argument and
invites the charge that Hobbes falls into the camp of those who wish to understand law
primarily in terms of limits on authority, and thus unable to grasp the constitutive features of
law. It would be more accurate to say that for Hobbes the laws of nature are constitutive of
authority—they make it possible for authority to exist. But because they constitute authority,
any genuine exercise of authority must be representable as in line with authority’s
constitutive conditions. As a result, those who are charged with the inevitable task of
interpreting the law must, as a matter of fidelity to law, make every effort to determine the
content of the sovereign’s judgments in light of their understanding of the laws of nature.
Now when judges interpret positive law in the light of their assumptions about the
the laws of nature, they are doing exactly what judges have done in the common law
tradition for centuries, and what they are required to do by the United Kingdom’s Human
Rights Act (1998). However, just this analogy might seem to show that there is nothing in
Hobbes’s description of judicial duty to challenge a positivist understanding of legality, since
20
such judicial interpretation can only happen as long as the legislature does not make its
intention clear to violate their assumptions. For at that point in the common law tradition, it
is usually accepted that judges have no choice but to defer to the legislature, while under the
Human Rights Act, judges may issue a declaration of incompatibility but may not invalidate
the offending provision in a statute. In other words, it seems that the statute retains its
authority despite the fact that it offends moral criteria which are not, we should remark,
only moral, but also embedded in law.
However, we have to see that there is a distinction between two categories of
moral/legal criteria. There are criteria that are embedded in law by decision of the legislature
or by the framers of the constitution and their role in legal order will depend on the
institutional structure prescribed or developed for enforcing those criteria. We can think of
this category as containing contingent criteria. The second category of criteria is not
contingent on the decision of any legal authority to inject moral content into the law because
the criteria are constitutive of legal authority. The question then arises about what happens
when legal authority issues a law that explicitly contradicts one of these criteria.
In my view, it is the case for Hobbes that authority is lost when the exercise of
authority departs too far from the basis of authority, from what normally justifies an exercise
of authority. Consider for example his injunction against punishing the innocent. Suppose
that the sovereign wishes to impose a currency trading regulation to prevent capital flight
from a country facing a financial crisis. Violations of the regulation are to be punished by a
jail term. In order to impress the population with the seriousness of the measure, the
sovereign makes the regulation retroactive, so that a group of people can be punished
immediately, even though they are being punished for a deed which was not a crime at the
21
time they did it.43 Here the law lacks legal authority for its victims on two grounds–they will
be punished and they will be punished despite their innocence.
Indeed, Hobbes would even deny that this is punishment. It is simply hostility. Now
the sovereign can of course use his superior power to enforce the law. But in order to get the
law enforced, he has to have the group judged guilty. And the judge would be faced with the
conundrum of a technically valid law which seems to lack authority because of its departure
from the basis of authority. The sovereign could try to bypass the courts by a statute which
names the people who are to be punished, so that all that is required is enforcement of the
punishment. But that statute is a bill of attainder. As the anonymous author of a Note in
1962 in the Yale Law Journal explains, the term bills of attainder comes from the practice in
sixteenth, seventeenth and eighteenth century England of using statutes to sentence “to
death, without a conviction in the ordinary course of judicial trial, named or described
persons or groups”.44 Such statutes are considered suspect from the point of view of the rule
of law precisely because they bypass the courts in order to inflict punishment and I think
Hobbes would also consider them legally dubious.
Raz in an essay on the rule of law does say that from a positivist standpoint
retroactive laws are suspect.45 But they are suspect for him because they subvert the ability of
the law to guide its subjects by giving them advance notice of the law’s requirements, not
because of their injustice. Hobbes’s argument is different, I think, because while he does say
that the law can never be unjust, in this situation the technically valid law’s (legal) injustice
might strip it of its characteristic as law, thus proving that the law can never be unjust. And
notice that in the Introduction to Leviathan, Hobbes talks about the authority of the
sovereign in terms of the sovereign’s “just Power”.46
22
What vanishes from Raz’s account of authority, but is kept constantly in view in
Hobbes, is the individual as author of the transfer. Raz starts with the idea that the problem
of authority stems from the autonomy of the individual. But then the individual as
autonomous author of authority vanishes. In addition, the legitimating basis that turns the
transfer of power into a delegation of authority is divided into two. That is, the de facto
authority has to claim that its directives are legitimate. But whether or not that claim is
justified is a matter decided after the fact by seeing whether the content of the directive is
consistent with the legitimacy conditions set by Raz’s version of liberalism. At this point, the
individual reappears but not as author of authority. Raz’s positivism requires us to see the
subject of the law as someone who is subject to an exercise of power by someone more
powerful. The subject should not therefore regard himself as under a prior duty to comply
with what he is commanded to do. The legal obligation has no force beyond potential pain
and is confronted by the imperative of individual conscience. Hobbes’s idea of the law as a
“public conscience” has no role to play.
Put differently, Raz’s account of legal authority is from the internal perspective, the
perspective of legal officials and legal subjects, altogether authoritarian. It is only from an
external perspective, the perspective of liberal philosophy, that generally authority can be
challenged. But then it turns out that authority is given no deference at all.47
So in what ways might the relationship of reciprocity between subject and sovereign-the “mutuall Relation between protection and obedience”--condition the exercise of
authority? I think that it might be useful to keep in mind that in confronting this question we
should be wary of a trap, which I call the validity/invalidity trap. This trap arises if we think
that a sufficient condition for the authority of particular laws is that they meet the formal
criteria of validity specified by a legal order’s rule of recognition. If the legal order provides
23
no institutional channel to invalidate a law, then no matter how repugnant we might think its
content, it has full legal authority.
Suppose that the Canadian Parliament, in the wake of another 11 September, enacts
an anti-terrorism law that gives the security services power to deal with suspects as they
deem fit. (Assume that the law is challenged and found constitutionally defective but
Parliament then uses the section 33 override to reinstate it.) I think that Hobbes provides us
with the resources to say that this law, though technically valid, creates a lawless regime
which is so inconsistent with the rule of law that the law lacks authority. It is a regime of
arbitrary power.
Conceiving of the law as an authority, which requires that I understand it as an
institution which I am under a prior obligation to obey, is what gives me the resources to
make this claim. Only if the exercise of legal authority is representable as living up to the
basis of authority will I regard the exercise as one of authority, rather than naked power. My
stance might get me nowhere. Power might simply assert itself. But that does not show that
my stance is futile. At the least, it requires that those who wield the power, if they want to
make a claim to have authority, and thereby to be legitimate, make a choice about whether
they want to rule by law or by power. Hobbism and Raz’s legal positivism does not confront
those with power with having to make this choice.
Further, Hobbes’s account of authority leads naturally to proposals for institutional
design which permit suspicions about authority to be translated into channels which permit
challenges to the exercise of authority. It is not that Hobbism/legal positivism necessarily
rules out such proposals. But it makes a difference, I think, if one sees that idea of legality,
even at its most minimal, contains an aspiration to authority, which is to say, just power, that
legal orders fulfill to different degrees and in different ways.
24
It might be then that we can establish a continuum of situations in Hobbes where
law’s claim to authority looks suspect and that is because generally the question of
legitimacy/authority for Hobbes is not (as it is for Raz) the content of particular laws, but
the legitimacy of legal order. As subjects, we conclude from right reasoning about the laws
of nature that we are under an obligation to obey the law of our sovereign. But particular
laws will lack authority–they will become an exercise of sheer power–when they violate our
fundamental interest in self-preservation or any of the laws that stem from that interest. In
the former case, we acquire a right to resist the sovereign. In other cases, we might have no
right of resistance, only no duty to comply (for example, the positive law that requires we kill
mediators). In yet others, we are entitled to have a law formally stripped of its authority; for
example, a judgment of biased arbitrator.48 Finally, there might be situations where the
sovereign would have to put in place some mechanism before we could get our sense
vindicated that a command lacked authority.
But what is important is not the question whether a legal official is entitled to
invalidate a law but that Hobbes might be best understood as raising such questions while
Hobbism/legal positivism does not, or at least, does not qua attempts to understand the
authority of law. And it is important because the issue isn’t whether, as before, there is an
institutional mechanism either prescribed or developed for stripping a particular law of its
validity. Rather, as subjects we need to be able to see that the claim of a particular command
to be authoritative is suspect when that command does not seem to comply with the
constitutive conditions of authority. And this point brings me back to the issue of the very
foundation of political and legal authority.
25
THE FOUNDATION OF AUTHORITY
“Therefor I put down for one of the most effectuall seeds of the Death of any State,
that the Conquerors require not onely a Submission of mens actions to them for the
future, but also an Approbation of all their actions past; when there is scarce a
Common-wealth in the world, whose beginnings can in conscience be justified”.49
Hobbes
Recall that the right of resistance of the legal subject is not a legal right, in the sense that it
can be invoked against the sovereign through law. But that it is a right tells us that for
Hobbes coercion of the subject by the state is always suspect. However, Hobbes is adamant
that coercion must be properly applied. It must be exercised under prior legal warrant and it
is subject to what today we would think of as constraints of proportionality. In this way,
coercion is rendered more legitimate without ever becoming completely legitimate.
Punishment is then subject to legitimating constraints, but ultimately it is an exercise of sheer
power.
This insight provides, in my view, an analogy with the assertion of political power
that is ultimately the real foundation of any sovereign state. Hobbes is anxious to argue in
the last chapter of Leviathan, “A Review, and Conclusion”, that it is spurious to distinguish
between the situation of duly constituted sovereign authority, SBI, and the submission to a
conquering sovereign, SBA, on the basis that the former is consensual and the latter is not.
Hobbes’s point is not only, as we have seen, that in each case consent is triggered by fear.
He also asserts, as we can see in the epigraph to this section, that it is better to be frank that,
if one goes back far enough, one will find that the source of all power lies in a grab rather
than in some exercise of justice.
26
But Hobbes does not reason from the fact that the state is never legitimate in its
origins that it is never legitimate. Rather, as we saw in the last section, power can be
rendered ever more legitimate as long as it is exercised authoritatively, that is, through the
institutions of legal order. Conversely, when the sovereign chooses to exercise power rather
than authority he confronts his subjects, as in the moment of punishment, in the state of
nature rather than civil society.
This point helps us to sort out two important ambiguities in Hobbes. The first
pertains to the construction or constitution of sovereignty, that is, about SBI. On the one
hand, one can understand this process in the following way. A multitude constructs the state,
who then become its subjects. But construction ceases at the moment when the state comes
into being. On the other hand, we can think of those subject to the state as being by that
relationship permanently involved in its construction.
The former process is often suggested by Hobbes, and Skinner supports it by dint of
his argument that the delegation of authority--the consent to be ruled by the state--to the
state is unconstrained. That is, Skinner argues that the authorizing agent not only undertakes
“responsibility for the actions performed by the representative in his name” but acquires a
“duty of non-interference”–which follows from the fact that when an authorizing agent
“voluntarily transfers the right to perform an action, he thereby gives up the right to perform
it himself.”50
But because Hobbes argues that those who are born into the condition of subjection
also consent to the authority of the state--ultimately authorize all that the sovereign does in
the name of the state-–one can claim that the state is continually in the process of
construction. Indeed, Skinner also argues that we retain our right of nature in civil society.
27
We can withdraw our consent at any time, on pain of placing ourselves into the state of
nature vis a vis our sovereign. He says, paraphrasing and quoting Hobbes, that the
“artificial chains by means of which we are persuaded to obey the laws are of course
sufficient to bind us as subjects. For the category of ‘subject’ is itself an artificial one,
the product of that indispensable piece of political artifice, the Covenant, from which
political obligation can alone be derived. But on the other hand, these chains are ‘in
their own nature but weak’. They can be made to hold only by the ‘danger, though
not by the difficulty of breaking them’. We retain our natural liberty at all times to
break what Hobbes … calls the cobweb laws of our country”.51
And that suggests a process of continual consent and authorization.
The second ambiguity is also demonstrated by Skinner. When he uses phrases such
as the “will of a “lawful sovereign”,52 this presupposes that a self-styled sovereign, whatever
his power, could turn out to be not a sovereign. And that suggests further the possibility that
an exercise of power by a lawful sovereign might turn out not to be lawful, if the sovereign
strays beyond the limits of his authority. That is, the basis of authority has to be in place for
a sovereign to be such and even when the basis is in place, the sovereign’s commands have
to be presentable as commands which live up to that basis.
Notice also that if one adopts the interpretative strategy Skinner suggests of seeing
both sovereign and subject as occupying artificial roles, one has to wonder why the subject’s
role imposes duties while the sovereign’s does not.53 When the subject steps outside of his
role, he steps into the state of nature. But perhaps we should be able to make the same point
about the sovereign, so that when the sovereign so steps, he is no longer sovereign–he no
longer has authority. He might be able to get subjects to do what he wants because of his
28
superior power, but that is no more an exercise of authority than is an exercise of power by
the slave owner over the slave.54
In my view, in order to understand the role of consent in the construction or
constitution of political and legal authority, we need to distinguish between a constitutive
role and a mediating role.55 Constitutive consent is required for SBI and also for SBA, while
mediating consent is required for the situation in which individuals become subjects simply
by being born into a sovereign’s jurisdiction and to explain the continued submission to
authority of all subjects, whether their subjection arose by SBI or SBA. Both roles are
required because mediating consent cannot be understood without its being modeled on
constitutive consent. Moreover, neither version of consent is hypothetical or passive. Rather,
constitutive consent is a regulative assumption of the account of authority: it is the ideal
which both legitimates authority and to which authority must in practice aspire. And
mediating consent describes the features of the practice which have to be in place for
constitutive consent to be realized.
Both roles are required because mediating consent cannot be understood without its
being modeled on constitutive consent. Moreover, neither version of consent is hypothetical
or passive. Rather, constitutive consent is a regulative assumption of the account of
authority: it is the ideal which both legitimates authority and to which authority must in
practice aspire. And mediating consent describes the features of the practice which have to
be in place for constitutive consent to be realized. The legitimacy of de facto authority derives
then from factors intrinsic to the practice of authority and these will be present when one
who has political power chooses to rule through law.
I do not want to suggest by this claim that all de facto authorities are then legitimate.
But to the extent that regimes like that of the apartheid government of South Africa, or even
29
more wicked legal regimes like that of the Nazis, have any legitimacy at all, this legitimacy
will come, I suspect, from the extent to which they rule through law and not by arbitrary
power. In my view, the same point applies to the American occupation of Iraq and to the
Israeli occupation of Palestinian land. It also applies to the Crown’s assertion of authority
over Canada’s First Nations.56
To the extent that there is rule through law, the rule of law, in these situations, to the
extent, that is, that there are smaller or larger pockets of non-arbitrariness, what makes those
pockets non-arbitrary is that power exercised authoritatively. It is exercised in accordance
with the constitutive conditions of authority and that makes it meaningful to claim that
consent plays a role in the constitution of authority.
1
Faculty of Law, Department of Philosophy, Toronto. This draft was rather hastily put
together from two handouts which I prepared for discussion by my seminar on Hobbes’s
political and legal philosophy in the Philosophy Department of the University of Toronto in
2001-02. It still bears the imprint of these handouts but despite these and other flaws I
should acknowledge the contribution of that seminar to my discussion, in particular, Evan
Fox-Decent, Lee Anne Garvie and Lars Vinx.
2
Richard Tuck, ed. (Cambridge: Cambridge University Press, 1997), chapter V, [19] 32-3.
Hereafter Leviathan.
3
Hobbes of course is very concerned to show that his secular account is fully consistent
with a religious account. I do not enter into the debate about the role of religion in Leviathan
though my argument entails that Hobbes does not need the idea of a deity as the ultimate
foundation of obligation since the foundation of obligation is internal to legal order.
30
4
There might be reasons why liberals would think that it is better not to have such a
constitution because there are better institutional means of implementing such values but
these do not affect my point.
5
Quentin Skinner, “Hobbes and the Purely Artificial Person of the State” in Skinner, Visions
of Politics: Volume III: Hobbes and Civil Science (Cambridge: Cambridge University Press, 2002)
177.
6
Leviathan, 3.
7
Skinner, “Hobbes and the Purely Artificial Person of the State”, 207.
8
Ibid, 208.
9
Skinner, “Hobbes and the Purely Artificial Person of the State”, 232-37.
10
Kinch Hoekstra, “The de facto Turn in Hobbes’s Political Philosophy”, in Tom Sorell and
Luc Foisneau, eds, Leviathan After 350 Years (Oxford: Oxford University Press, 2004) 33, at
50-1.
11
Ibid, 52. I think he has in mind an example like the following: an Iraqi could consistently
hold both that the American occupying force is illegitimate but that its commands should be
obeyed if complete chaos is to be avoided.
12
Ibid, 57.
13
Ibid, 63.
14
Ibid, 69.
15
Ibid, 72.
16
Raz, “Authority, Law, and Morality” in Raz, Ethics in the Public Domain: Essays in the Morality
of Law and Politics (Oxford: Oxford University Press, 1994) 194 at 196.
17
Ibid, 196-7.
18
Ibid, 198-9.
31
19
Ibid, 199.
20
Ibid, 202.
21
Ibid, 199. Raz goes on to say in the same paragraph: “A legal system may lack legitimate
authority, If it lacks the moral attributes required to endow it with legitimate authority it has
none”. But he fails to specify whether “none” means no authority of any kind or no
legitimate authority.
22
Ibid, 194.
23
Ibid, 195.
24
Ibid, 202.
25
Ibid, 204.
26
For a devastating response, see Ronald Dworkin, “Thirty Years on”, Harvard Law Review.
Dworkin not only criticizes each step in Raz’s argument but points out that Raz’s account of
authority leads to two different and contradictory stances to authority: either almost
complete deference or no deference at all.
27
Raz does concede, ibid 211, that every legal order will achieve some moral good though a
very weak one, which is insufficient to establish a prima-facie obligation to obey the law.
And he also says that his argument is evaluative, but only in the sense that “any good theory
of society is based on evaluative considerations in that its success is in highlighting important
social structures and processes, and every judgment of importance is evaluative.” Thus he
rejects outright the suggestion that his understanding of authority is the Hobbist one that
social order is “liable to break down if substantive moral arguments used in adjudication are
counted as helping to interpret the law because that would encourage members of the
society to break the law in hope of avoiding the legal consequences by challenging the
justification of the standard.” [219] Rather, what his argument does is to explain what is
32
“central and significant in the common understanding of the concept of law.” This
explanation fastens on to the feature of law’s claim to authority and the mediating role it
carries with it. “The significance of this feature is both in its distinctive character as a
method of social organization and in its distinctive moral aspect, which bring special
considerations to bear on the determination of a correct moral attitude to authoritative
institutions. This is a point missed both by those who regard the law as a gunman situation
writ large and by those who, in pointing to a close connection between law and morality,
assume a linkage inconsistent with it.” [221]
28
Raz, “Government by Consent”, in Raz, Ethics in the Public Domain, 339, 350-1.
29
Ibid, 339.
30
Ibid, 351-2.
31
Ibid, 353.
32
Raz, “The Obligation to Obey: Revision and Tradition”, in Raz, Ethics in The Public Domain,
325.
33
Ibid, 338.
34
Leviathan, “A Review, and Conclusion”, [396] 491.
35
There are other similarities, not dealt with in the text. Both rely on the idea of delegation
of authority in standard legal situations–appointing someone to act as my agent–as part of
the argument for understanding authority in terms of delegation. And both see that there is a
special problem when we are talking about the state in terms of delegation of authority, since
the delegation of authority to state seems so extensive. See Evan Fox-Decent, PhD thesis,
36
Yves Charles Zarka, “The Political Subject”, in Sorell and Foisneau, 167, at 180-1.
37
Ibid.
38
Ibid, 181.
33
39
Ibid, 182.
40
Ibid, 181.
41
Leviathan, chap. 29, [168-9].p. 366.
42
These constraints and their role in legal order are neglected to an astonishing extent by
many Hobbes scholars, most notably Quentin Skinner and others who argue for the Hobbist
interpretation of Hobbes. I analyse Hobbes’s account of the rule of law in detail in
Dyzenhaus, “Hobbes and the Legitimacy of Law”, (2001) 20 Law and Philosophy 461.
43
See Fuller, The Morality of Law at XXX for this example.
44
Note, (1962) 72 Yale Law Journal 330.
45
Raz, “The Rule of Law and its Virtue” in Raz, The Authority of Law
46
Leviathan, “The Introduction”, [2] 10.
47
See Dworkin, note XXX above. It is worth recalling at this point Hobbes’s stated aim of
showing how we might pass unwounded between the opposing swords of those who
“contend on one side for too great liberty, and on the other side for too much authority”;
Leviathan, 3. Hart set exactly the same aim for positivist legal philosophy in 1958: “Positivism
and the Separation of Law from Morals”.
48
Like Hobbes, Raz wants a rule against bias. See ibid, XXX. But there is no limit set by
autonomy that would allow us to say that a technically valid law fails to be a law because it is
illegitimate. That is, unless he connects the rule about bias to autonomy, which he in fact
does not. In his essay, “The Rule of Law and its Virtue”, he says that the rule against bias is
justified because it is “essential for the correct application of the law”, that is, because–
following the sources thesis-it assists the kinds of legal tests which determine the content the
law in fact has.)
34
49
Leviathan, “A Review, and Conclusion”, [392] 486.
50
Skinner, “The purely artificial person of the state”, in Skinner, note XXX above, 177, at
185.
51
Skinner, “Hobbes on the proper signification of liberty”, 224. The internal quotes are
from Leviathan, chapter 21, [108-9], 147. The phrase “Cob-web Lawes” occurs in Leviathan,
in chapter 27, the chapter on “Crimes, Excuses, and Extenuations”, [153] 204.
52
Skinner, XXX
53
Skinner, “Hobbes and the purely artificial person of the state”.
54
Notice in this regard that in a legal system where slavery is a recognised institution, the
slave owner will have the legal right to do with a slave as he wants, but that does not give
him authority over the slave any more than the fact that I can do with my pen as I want
gives me authority over my pen. That is because in order to be owned, slaves have to be
regarded as things not persons. The gradual recognition in Roman law of the slave as a
person is also a transition from a power to an authority relationship.
55
In his thesis, see note XXX above, Fox-Decent argues that we should replace the idea of
consent with the idea of trust, understood along the lines of the legal notion of a fiduciary
trust. Through this argument, he is able to draw a fruitful analogy between the idea of public
authority in the administrative state and the idea of the obligations of the state in Canada to
First Nations. In my view, it is not necessary for this argument to jettison the idea of consent
and with Jeremy Webber, I see several reasons to hang onto the idea.
56
For this situation, see Fox-Decent.
35