Law and Public Reason

Law and Public Reason

David Dyzenhaus”

In this article, the author argues that H.L.A.
Hart’s legal positivism is ultimately self-
subverting. He contends that Hart fails in his
attempt to show that positivism can explain the
normativity and authority of law in a way
which does not entail any commitment to the
legitimacy of law; Hart’s positivism cannot
escape its origin in Thomas Hobbes’s com-
mand theory of law which holds that positive
law is always legitimate. Thus, Hart’s positiv-
ism does not provide subjects with a genuine
resource to test the legitimacy of law. How-
ever, the author concludes that such a resource
might be found in Ronald Dworkin’s legal the-
ory, if he is understood as arguing that the
legitimacy of law is a matter of principles
immanent within the law.

Dans cet article, l’auteur affirme que la
thdorie positiviste du professeur H.L.A. Hart
finit par se miner elle-m~me. D’apr~s lui, Hart
ne parvient pas a d6montrer que le positivisme
peut expliquer ]a normativit6 et l’autorit6 de la
loi inddpendamment de la 16gitimit6 de cette
demi~re ; le positivisme de Hart est ancr6 dans
]a th6orie de Hobbes, selon laquelle le droit
positif est toujours 16gitime. La th6orie de Hart
n’offre done aucun moyen d’6valuer la 16giti-
mit6 de ]a loi. Mais, conclut l’auteur, la thorie
de Dworkin fournit peut-8tre un tel moyen, si
on consid~re qu’elle pr6sente Ia 16gitimit6 du
droit comme relevant de principes immanents
au droit.

I thank Arthur Ripstein and Cheryl Misak for their comments on drafts of this essay and the
students in my “Normativity, Positivism, and the Law” seminar at the University of Toronto, Fall
Term of 1991 for many insights. I should also mention that the ideas in this essay were conceived
in and inspired by numerous discussions with Ronald Dworkin in the course of his supervision of
my doctoral thesis at Oxford, with Madison Powers during that same period, and with Michael
Taggart during the course of revision of the thesis for publication.
McGill Law Journal 1993
Revue de droit de McGill
To be cited as: (1993) 38 McGill L.J. 366
Mode de r6f6rence: (1993) 38 R.D. McGill 366

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Synopsis

Introduction

I.

Legality and Legitimacy

II. The Rule of Recognition

IlL The Legitimacy of Wicked Law?

IV. The Persistence of Law and the Continuity of Law-Making Power

V.

Legal Limits on Sovereignty

Conclusion

Introduction

The current debate between legal positivists and Ronald Dworkin can be
understood as centring around the question of whether, and to what extent, the
authority of law is dependent upon its legitimacy. At least this is so from the
perspective of this century’s most influential positivist, H.L.A. Hart, who argues
that it is a mistake to confuse legitimacy with legal authority. For him a virtue
of the positivist conception of law is that it can explain the normativity or
authority of law without presupposing or entailing any commitment to its legit-
imacy. Positivism, he argues, encourages legal subjects to question the legiti-
macy of law because it necessitates the conclusion that law in and of itself has
no claim to legitimacy despite its claim to authority.

In this article, I will show that Hart’s conception of legal positivism is ulti-
mately self-subverting. It cannot escape its origin in Thomas Hobbes’s com-
mand theory of law which holds that positive law is always legitimate. Hart of
course explicitly rejects the command theory of law, and attempts to replace its
idea of law as the product of the command of the sovereign with his concept of
a “rule of recognition.” With Robert Ladenson I will argue against Hart, not
only that Hobbes’s idea of the command of the sovereign should remain funda-
mental for legal positivism, but that the idea can accommodate, perhaps even
already includes, the conception of a rule of recognition. However, I will also
argue against Ladenson that Hobbes’s idea of command, despite some of the
concerns he expressed in this regard, entails the conclusion that law is always
legitimate. Hence legal positivism, including Hart’s particular conception, can-
not provide subjects with a resource to test the legitimacy of law.

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Moreover, I will suggest that a circularity that Ladenson finds problematic
in Hart’s conception of the rule of recognition is only problematic for a positiv-
ist theory of law. Within a theory of law like Dworkin’s, such circularity not
only makes sense but permits us to see just how a theory of law might offer a
genuine resource for testing the legitimacy of law.

I. Legality and Legitimacy

The central puzzle about the nature of law is how to reconcile its two faces.
On the one hand, the law claims authority over all its subjects; it claims the right
to rule and thus it claims their allegiance. So the first face of law is normativity.
On the other hand, the law threatens law-breakers with coercion. It is taken to
be a mark of an effective legal system that it can by and large implement that
threat. So the second face of the law is effective coercion. This reminds us of
the existence of wicked legal systems like the South African one which continue
to exist despite the fact that the majority of their subjects are oppressed by
unjust laws. Such systems exist not because of the general allegiance of sub-
jects, reflected in a widespread recognition of the right to rule of the rulers, but
because the subjects are effectively coerced into obedience.

Hence the puzzle: it seems that in order to understand what law is we have
to understand its claim to authority, as well as its coerciveness. But how are we
to understand a claim to authority when the legal system on whose behalf it is
made is thought by many of its subjects, as well as outside observers, to be mor-
ally illegitimate? Is the law’s claim to authority, that is, its claim on the alle-
giance of its subjects, altogether different from a claim about its legitimacy,
understood as its claim to allegiance on the basis of principles of sound moral-
ity?

In a classic attempt to provide a solution to this puzzle, H.L.A. Hart argues
for a positivist conception of law.’ Such a conception holds that what law is is
determined by an inquiry into certain publicly accessible social facts, and not
by moral argument. In elaborating upon this, Hart rejects the command model
of law advocated by positivists from Hobbes to John Austin.2 The command
model is based upon the belief that law is a set of commands, backed by gen-
erally effective threats, of a legally unlimited sovereign. We know who the sov-
ereign is by finding out what person or institution in a society is both habitually
obeyed and is not subservient to any other person or institution. The model thus
takes the mere fact of effective government power exercised through law as
definitive of what law is.

Hart argues against the command model but not because he disputes its
claim that law exists when there is an effective government which governs
through the medium of positive law. His complaint is only that it reduces law
to its second face of coercion. It thus fails to account for the normativity of law.

1H.LA. Hart, The Concept of Law (London: Oxford University Press, 1961) [hereinafter Con-

cept of Law].

21For the purposes of this essay, I take the positivist tradition not to include the neo-Kantian pos-

itivism of Max Weber, Hans Kelsen and Gustav Radbruch.

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It cannot explain why, as Saint Augustine urged, we should distinguish the legal
state from robber bands.’

It might seem that the obvious approach to this problem is to understand
the law’s claim to authority as one which is always, however weak in wicked
legal systems, a justified claim about the legitimacy of law. But it is just that
approach that Hart wants to avoid. He thinks that it is a mistake to confuse legit-
imacy with legal authority. For him a virtue of the positivist conception of law
is that it can explain the normativity or authority of law without presupposing
or entailing any commitment whatsoever to the legitimacy of law. For the posi-
tion encourages legal subjects to question the legitimacy of law. They will take
a critical attitude to law because they will know that law in and of itself has no
claim to legitimacy, despite the fact that it does and must claim authority.4 In the
current debate between legal positivists and Ronald Dworkin the focus has not
been directly upon the issue of the legitimacy of law. Rather it has been upon
whether Dworkin’s understanding of adjudication fundamentally challenges the
positivist understanding of law as determined by inquiry into certain publicly
accessible social facts and thus not by moral argument. The central issue here
is the role of moral principles in the determination of hard cases. Hard cases are
cases where it is controversial what the law is on a matter. For positivists, it
seems that if hard cases can be settled only by arguments of principle, that is,
by judges resorting to moral arguments and considerations about what the law
should be, then such cases are settled not by law but by an act of judicial dis-
cretion. In other words, the judge has to reach beyond the law and, as a result,
her decision is not determined by what the law is, but by her judgment as to
what the law should be.

Since Dworkin’s challenge to positivism has hinged on showing the perva-
siveness of principles in judicial reasoning in hard cases, this positivist claim
about discretion has deadlocked the current debate. The more Dworkin shows
that adjudication is a matter of principles, the more positivists think that he has
proved their thesis about discretion.5

I believe that this debate can be unlocked by attending to a tension in Hob-
bes’s argument for a positivist conception of law. The tension exists between the
principle that law is not subject to the evaluation of morality and Hobbes’s
temptation at times to provide a very limited right of resistance to legal subjects
in cases of severe state oppression. Hobbes argues that law is much more than
the embodiment of public reason; it is the embodiment of right reason. That
argument is made in the service of an enlightened political project – one which
seeks to achieve a political order that will ensure respect for what Hobbes takes
to be the natural equality of all individuals. However, in requiring that law be

3Concept of Law, supra note 1 at 152.
41bid. at 205-07.
5See generally R. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press,
1978); R. Dworkin, Law’s Empire (Cambridge: Belknap Press of Harvard University Press, 1986);
Concept of Law, ibid.; H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford Uni-
versity Press, 1983) at 6-7 [hereinafter Essays]; J. Raz, The Authority of Law: Essays on Law and
Morality (Oxford: Oxford University Press, 1979) [hereinafter Authority of Law].

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necessarily the embodiment of right public reason, that law be taken by subjects
as legitimate whatever its content happens to be, Hobbes in fact subverts his
enlightened project.

This tension in Hobbes’s work is reproduced in Hart’s work and it explains
the difficulty Dworkin has had in challenging positivism. More importantly,
however, this tension illustrates that once the debate between contemporary pos-
itivism and Dworkin is conceived as a debate about right or appropriate public
reason, we can see why it is not an arcane dispute about the proper way to
understand adjudication. Rather it is a debate about some of the most important
questions of legal and political philosophy.

H. The Rule of Recognition

A useful starting point is Robert Ladenson’s defence of a Hobbesian con-
ception of law.6 Ladenson argues that Hobbes’s command model does respect
the important distinction between law and the orders of a gangster. He also
argues for the superiority of a Hobbesian conception of law over Hart’s because
Hobbes’s conception escapes a circularity fatal to Hart’s conception.

Ladenson’s defence brings to light two questions. The first question I want
to explore is whether circularity is a defect only in positivist conceptions of law
but not a defect in others, for example, Dworkin’s. The second question to be
explored is whether Hart’s mistake in providing a circular argument for a pos-
itivist conception of law is illuminating. I believe that this mistake is illuminat-
ing in that the need Hart wants to address in providing a circular argument, that
is, providing subjects with a resource to test the legitimacy of law, cannot be ful-
filled by a positivist conception of law. The urgency of this need is shown, also,
by the fact that even Ladenson’s argument becomes circular as soon as he tries
to deal with it. Indeed, Ladenson’s retrieval of Hobbes on behalf of positivist
legal theory tells us why we should ultimately reject positivism.

In Part I of his essay, Ladenson rests his argument on a distinction between
justification rights and claim rights.7 Claim rights are rights which correlate with
duties. They presuppose an institutional background which will uphold one’s
claim that one is owed certain performances or forbearances by others. It should
be noted that such rights cannot do the job of providing non-circular support for
a positivist conception of law. Non-circular rights would be those established by
an argument which would show what the justification for the institution that cre-
ates those rights and duties is.

Although Ladenson does not specifically characterize Hart’s concept of
law as one which rests on the idea of claim rights, his charge of circularity
against Hart exposes the claim right structure of Hart’s account of the rule of
recognition, which Hart argues should replace the command model. Hart holds

6R. Ladenson, “In Defense of a Hobbesian Conception of Law” (1980) 9 Phil. & Pub. Aff. 134.
Hart directs his argument at the command model of law put forward by John Austin. But since
Hart’s specific criticisms of that model apply with equal force to Hobbes, I will, following Laden-
son, take Hobbes as the real target of Hart’s critique.

71bid. at 137-39.

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that the fundamental rule of a legal system is its rule of recognition which stip-
ulates how other legal rules are to be identified. The rule of recognition is thus
a secondary rule which tells us how the primary rules, the rules which grant
rights or impose obligations on the members of a community, are to be identi-
fied.8

According to Hart, we find out what the rule of recognition is by observing
the practice of legal officials. In other words, we see what arguments they ulti-
mately accept. as showing the legal validity of a particular rule and what argu-
ments they (rightly) use to criticize those officials who depart from accepted
practice.

Hart has basically two arguments to support his contention that the rule of
recognition can explain the normativity of law.’ Both rely on his contention that
normativity is a matter of rules not commands. Hart’s first argument, which I
will deal with in Sections IV and V below, is that the idea of a rule, and not the
model of an uncommanded commander, is required to explain certain features
of legal systems. The second argument, which is my focus here, claims to show
that the rule of recognition is the key to understanding a legal system as a matter
of rules.

In the case of primary rules, the second argument is not problematic. Pri-
mary rules are recognized not because they are commands but because they
conform to the criteria of validity of the rule of recognition. It is appropriate for
officials to identify and apply these as the rules of the legal system because this
is what the criteria of validity show to be appropriate. But how is the rule of rec-
ognition itself explained? What makes it appropriate for officials to accept the
rule?

Hart resists giving answers to these questions. For him it is sufficient to
claim that such a rule is in fact the key to any legal system and that officials
manifest their acceptance of the rule by continuing to act in terms of the criteria
it stipulates. As Ladenson points out, Hart’s resistance makes his account of the
rule of recognition circular. The concept of law is analyzed in terms of the rule
of recognition. But the rule of recognition is elucidated in terms of the concept
of law.’

Ladenson does not want to reject the idea of the rule of recognition as a
potentially useful account of important features of a legal system, any more than
he wants to reject the idea of a claim right. His point is only that Hart’s account
does not provide a “philosophically illuminating reductive elucidation of the
concept of law.”‘”

Put differently, in order to escape circularity, Hart would have to tell us
what the argument is for officials to adopt, as the fundamental rule of the legal
system, the concept of law presupposed in the idea of the rule of recognition.

8Concept of Law, supra note 1 at 89-120.
91bid., c. 4, 5.
lLadenson, supra note 6 at 157-59.
“Ibid. at 159.

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That argument, it seems, must be one which explains the duty that officials have
to adopt the rule of recognition as the fundamental legal rule without referring
to the right which legal subjects have to expect that officials will determine what
law is in accordance with the rule.

The vice of circularity here, then, is that it leaves unanswered the question
which Hart himself takes to be crucial. What makes it appropriate for officials
to accept the rule of recognition as binding? Without an answer to that question,
we are left without an account of the normativity of law.

Ladenson grounds an account for normativity in the notion of a justifica-
tion right. In contrast with claim rights, justification rights do not provide the
basis for a claim against others but, rather, allow a response to demands for jus-
tification of one’s behaviour. The right to rule, he suggests, is such a right when
understood in terms of Rational Contractor Theory, of which the device of
Rawls’s veil of ignorance is the best known contemporary expression. 2

For Ladenson, the right to rule is a justification right if one can set out a
“plausible account of a line of reasoning that would lead all rational people
under the veil of ignorance not to object to coercion when genuinely carried out
by governmental authority.” [emphasis added] 3 And Ladenson takes the argu-
ment of chapter 13 of Leviathan as supplying just such a plausible line of rea-
soning. It advances “strong reasons … for holding that possession of the govern-
mental power and acceptance by those one presumes to govern of its exercise
jointly constitute a justification for coercive acts which would otherwise be
immoral.”‘4

Hobbes’s argument starts in his “state of nature,” where each individual
has an absolute right to the satisfaction of his desires. But since Hobbes holds
that in the state of nature there can be no more to a claim of individual right than
an expression of subjective desire, this absolute right makes the state of nature
one of perpetual war between individuals so that life is “solitary, poore, nasty,
brutish, and short.”‘”

This argument, notoriously, leads Hobbes to the conclusion that peace and
order can only be secured if all individual subjects give up their natural right to
act as they see fit in accordance with natural reason, that is, their subjective
evaluations of good and bad, desirable and undesirable. They should give up
that right, as Hobbes tells us in the second Law of Nature, to the extent that they
deem this necessary for peace and to the extent that others are prepared to give
up the same. And the first Law of Nature tells us that we should seek to preserve
ourselves and that peace is the guarantee of self-preservation. 6

The problem for Hobbes is that his subjectivism, that is, his premise that
there is no more to natural reason (individual reason in the state of nature) than

121bid. at 139-40. See also J. Rawls, A Theory of Justice (Cambridge: Belknap Press of Harvard

University Press, 1971).

13Ladenson, ibid. at 140.
“Ibid. at 139. See T. Hobbes, Leviathan, C.B. MacPherson, ed. (London: Penguin, 1981).
15Leviathan, ibid., c. 13 at 186.
6Ibid., c. 14 at 189-90.

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LAW AND PUBLIC REASON

an expression of desire, leads, as we have just seen, to the state of nature being
the reign of subjective desires; a war of one against all.17 His statements of the
first few laws of nature each contain what in administrative law would be called
a “subjective discretion clause” which puts the decision as to the kind of action
required to follow the law, and the means required to carry it out, in the absolute
discretion of the subject. So these statements carry within themselves the seeds
of their own destruction.

Hobbes’s solution to this problem is a wholesale substitution of the “‘arti-
ficial reason” of a sovereign whose commands establish the order that makes
peaceful coexistence possible for the natural reason of individuals. The sover-
eign’s reason is of course merely his understanding of what the laws of nature
require. But if his reason is taken as a standard of right reason by subjects, as
in fact representing the outcomes of correct natural reason, it serves as the arti-
fact which makes order possible. For to allow to individuals the decision as to
what is in fact necessary to achieve peace, or the extent to which liberty should
be given up, or as to the question whether everyone has given up a like amount
of liberty, is to reintroduce the danger of the slide into war.”3

As Hobbes makes clear in his chapters on what we might think of as the
institutional design best suited to secure peaceful order, 9 individual reason as
to what is necessary to secure order has to be pre-empted by the artificial reason
of the sovereign. The fact that the sovereign has commanded “that x” is suffi-
cient reason for obedience to x. In Hobbes’s words: “COMMAND is, where a
man saith, Doe this, or Doe not this, without expecting other reason than the
Will of him that sayes it.”2 Thus law for Hobbes is the kind of law which best
realizes the idea of command. Law is law when it is of the kind that effectively
pre-empts reason on all those matters which, if left to the dictates of natural rea-
son, would start the slide towards civil war.

I will come back to the important issue of institutional pre-emption of nat-
ural reason in Section V below. For the moment, I want to focus on Ladenson’s
claim that Hobbes’s argument in chapter 13 of Leviathan is a Rational Contrac-
tor argument, capable of grounding law’s claim to authority. As we shall see,
Ladenson wants to sustain that claim in order to join with Hart in resisting the
contention that law is always legitimate.

III. The Legitimacy of Wicked Law?

Because Hobbes regards the pre-emption of natural reason by the artificial
reason of the sovereign as vital for securing order, it is not open to the subjects
of a particular sovereign to question the origins of their sovereign’s power. That
question is, for Hobbes, tantamount to questioning the legitimacy of sovereign
power and thus to taking the first step on the path to the war of each against all.
Subjects must assume the legitimacy of both the sovereign that they happen to

lIbid., c. 13 at 183-86.
181bid., c. 13 at 186-88.
19Chapters 18 to 31 of Leviathan, ibid., deal with institutional design.
2 Ibid., c. 25 at 303.

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have and his particular commands. The only time they might appropriately ask
questions about legitimacy is when they are already in a state of civil war, and
then the question has no meaning since the war will be resolved by superior
force and not by arguments about legitimacy.2

Paradoxically, the upshot of Hobbes’s Rational Contractor argument is that
subjects must always assume they have entered into the contract, no matter their
actual place in society. Although Hobbes makes a distinction between sover-
eignty by institution and sovereignty by acquisition, he denies that a sovereign
could ever as a matter of fact be instituted. Defacto sovereigns are by definition
sovereigns by institution, since on his argument subjects have always consented
to the bonds of civil society, even when from the outside those bonds would be
judged oppressive.22

Seen in this light, Hobbes’s position seems quite different from Rawls’s
veil of ignorance, in which subjects are able to design society in accordance
with their assessment of where they might end up. For Rawls, it seems, one can
question the legitimacy of one’s place in civil’society. It is only through actually
observing the defects in justice of existing social arrangements that one can
inform one’s choice behind the veil of ignorance. The ambition of Rawls’s lib-
eralism is not to justify what actually exists, but to bring what actually exists
closer to an ideal informed by knowledge of the defects in what exists.

Hart and other contemporary legal positivists are also liberals in this sense.
They, for reasons already suggested, think that a positivist conception of law
encourages legal subjects to be critical of the law in order to bring about
changes in it that accord more with their perception of their interests. Ladenson
too wants to enlist himself and Hobbes, or at least a Hobbesian conception of
law, in the liberal ranks.

How can the justification right produced by Hobbes’s Rational Contractor
argument in chapter 13 of Leviathan be so enlisted? Ladenson’s answer relies
on the difference between the structure of justification rights and claim rights.
While claim rights correlate with duties, justification rights do not. Since they
do not so correlate, they are not threatened by circularity. The sovereign must
always have, on Hobbes’s argument, the right to exercise governmental power.
But that right does not without further argument correlate with any duties on the
part of the sovereign’s subjects.

By way of example, Ladenson says that during the Nazi era, German traffic
police had a right to detain speeding motorists which private citizens did not
have. This right “stemmed simply from the Nazi government’s power and gen-
eral acceptance, not from the moral worth of its ideological foundations.”‘ And
he also says that German citizens had a right to resist the Nazis, and in particular
to resist their policy of placing people in death camps.24

21Ibid., C. 19 at 238-39.
22Ibid., c. 18 especially at 228-32, c. 19 especially at 239-42, c. 20 especially at 251-53.
23Ladenson, supra note 6 at 144.
241bid. at 142-45.

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Here, Ladenson draws an analogy between the right to exercise govern-
mental power and the right of self-defence. He says that the right of self-defence
has limits: self-defence can become retaliation. Nevertheless, one continues to
have the right of self-defence in the abstract even though in the concrete one
may have transgressed its limits.’

Thus, Ladenson wants to claim that the Nazis did not lose their abstract
right to rule, held merely in virtue of their monopoly on governmental power,
even though in the concrete they had transgressed its limits. His point seems to
be that, insofar as Nazi law transgressed the limits of “genuine” governmental
power, subjects were under no duty to obey those laws. Indeed, they had a right
to resist them.

But the analogy is not apt. The defence of self-defence exists not in the
abstract, but rather against an institutional background, established by govern-
ment or the common law, which grants that defence. In fact, the defence is
hardly a justification right, even though in law its function is to operate as a jus-
tification for action that would otherwise be illegal. One has that right because
of the duty of subjects not to attack one another. And it is the fact that one is
subject to that same duty that places limits on the right of self-defence.

Indeed, for Hobbes it is not open to subjects to make the distinction
between the abstract and the concrete when the issue is the legitimacy of sov-
ereignty and of the actual commands of the sovereign. The existence of the
abstract right to rule depends on subjects not making that judgment. It is for this
reason that Hobbes emphatically argues that the sovereign is an uncommanded
commander. There can be, within his conception of sovereignty, no limits on
legislative power.”

I will examine below Ladenson’s attempt to justify legal limits on the sov-
ereign within a Hobbesian conception of law. For the moment it should be
noticed how his analogy between the right of self-defence and the right to exer-
cise governmental power exposes his own slippage towards circularity. His
account of the right of resistance of German subjects to the Nazi government is
only a hair’s breadth away from the claim that the subjects had that right
because the inappropriate exercise of governmental authority meant that sub-
jects no longer had a duty to obey the sovereign’s commands insofar as these
were inappropriate. Conversely, it must be that subjects have the duty to obey
the commands of defacto governments when, and only when, those commands
are legitimate.27

Ladenson would justly respond that his account of limits to governmental
power does have a basis in Hobbes. As he points out, Hobbes would have said

25Ibid. at 142-43.
26See especially Leviathan, supra note 14, c. 26.
27Ladenson is right to say that one legitimate reason for obedience to political authority is that
governments can sometimes achieve through coercion goals which it would be immoral for private
citizens to attempt to achieve by the same means. See Ladenson, supra note 6 at 143. But while
this reason might have required Nazi subjects to obey the commands of the traffic police, the
requirement would stem from that particular legitimating reason and not from the general justifica-
tory argument for governmental authority which Ladenson takes from Hobbes.

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of European Jews that they were not subjects or citizens, but rather captives of
the Nazi government. It follows that they were under no duty at all not to resist
Nazi power.”8

And Hobbes, as is well known, explicitly allows subjects a right of self-
defence when their sovereign endangers their survival, even when the danger is
in the form of a punishment visited on subjects according to law.29 He concludes
Leviathan by saying that his only design was “to set before mens eyes the
mutuall Relation between Protection and Obedience.” ‘3

But the fact that Ladenson’s response has a basis in Hobbes’s justificatory
argument does not show that the response succeeds. We have to ask whether
there is not a deep tension in the structure of Leviathan, and in any Hobbesian
conception of law, which attempts to establish a right of civil disobedience on
the basis that the sovereign has overstepped the limits of legitimate power.

That is, Hobbes’s argument is non-circular in that he provides a justifica-
tory argumentfor law of a particular kind. We should adopt a conception of law
that is capable of effectively pre-empting individual reason because such pre-
emption is the only way to avoid the war of each against all. In order to preserve
its integrity, the proponent of that argument has relentlessly to resist giving sub-
jects the option of public moral criticism of the law, let alone action in defiance
of the law.31 If subjects are encouraged to criticize the law for not being in
accordance with right reason, that is, their natural reason, the spectre of civil
war looms. Thus subjects must assume the legitimacy of law which means that
Hobbes or a Hobbesian must actively disapprove of advocating tests for the
legitimacy of law.

In other words, Hobbes’s argument is non-circular in that it provides what
we can think of as an external justificatory argument. That argument requires
that law must not be subject to the evaluation of public political morality. And
this requirement is in deep tension with Hobbes’s claim that subjects have a
right to resist the sovereign when their very survival is at stake.

What then are we to make of these seemingly conflicting claims and of
Ladenson’s attempt to make a benign liberal of Hobbes?32 By contrast with this

2Slbid. at 145 note 15.
29Leviathan, supra note 14, c. 21 at 268-69.
30Ibid. at 728. Carl Schmitt, perhaps Hobbes’s most important twentieth-century disciple,
responded to the Nazi situation in just this way, at least from the time that he had fallen from grace
with the Nazis. However, unlike Ladenson, Schmitt was very much aware of the tension in this
Hobbesian response and in Leviathan itself. See C. Schmitt, Der Leviathan in der Staatslehre des
Thomas Hobbes: Sinn und Fehlschlag eines politischen Symbols (Cologne: Edition Maschke im
Hohenheim, 1982) [hereinafter Der Leviathan].
311n Leviathan, ibid., c. 30 at 381, Hobbes admits that it might be impossible for the sovereign
to reach into people’s minds. All that he can hope to command, and all that he needs to command,
are the outward manifestations of the mind, that is, actions. In Der Leviathan, ibid. at 113, Schmitt
argues that this chapter exposes the tension in Hobbes which must eventually lead to the subversion
of the Hobbesian project.
32David Gauthier has recently suggested an interpretation which would follow naturally from
Ladenson’s claim that Hobbes is offering us a Rational Contractor Theory of morality. We are to
suppose that Hobbes should be committed to a much more generous account of what individual

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benign interpretation which seeks to make Hobbes into a proto-liberal, there is
a nasty, authoritarian interpretation. The authoritarian interpretation is that when
Hobbes recognizes a right to resistance, he recognizes it as a kind of brute fact.
Even when subjects accept that law is legitimate whatever its content, there will
come a point in the implementation of oppressive law when that acceptance
must begin to crumble just because oppression has reached a certain pitch. At
this point, it makes no sense to say that subjects have a duty to obey the law.
If anything, subjects will react like cornered rats in such a situation since they
are beyond the reaches of rational argument.33

But it is also important to see that consistency requires Hobbes to refrain
from saying that subjects in these dire straits have a duty to obey the law. For
the premise of his argument is that this duty arises from the need to establish
the order that permits individual self-preservation and security. When there is
no question but that an individual’s self-preservation is at stake, Hobbes has to
concede that in some sense that individual is in something like the state of
nature, where all the constraints of civil society-are absent.

However, the individual is still in civil society subject to the effective
power of the sovereign. So the lack of normative constraints from that indivi-
dual’s point of view does not affect what officials should do. They must execute
the commands of the sovereign, however oppressive they are. Nor would Hob-
bes think that subjects who are not oppressed in this way are entitled to come
to the aid of the oppressed. Finally, he would not want subjects to be told that
they have such a right since that would put in their subjective discretion the
decision as to when oppression had reached the requisite pitch.’

Thus, unless Hobbes could have accepted that all German subjects were in
an analogous position to European Jews, Hobbes could not have thought that
there was a general right of resistance. And he could not have been influenced
in making this judgment by what happened to all Germans as a result of Nazism.
Such retrospective judgments are irrelevant and dangerous. When order in fact
breaks down, law loses its legitimacy because the sovereign is no longer effec-
tive. And to allow for evaluation by subjects of the legitimacy of law on the
basis of what might happen is, on his view, to ask for the breakdown of order.

Indeed, there is a real question, seldom asked, about who the audience of
Leviathan is. The tension just identified arises because Hobbes both requires
that officials faithfully execute highly oppressive commands and acknowledges
something like a right of resistance for those who are severely oppressed. His
way of working out the tension is to avoid the circularity that arises when effec-
tive power is considered legitimate only on condition that it is appropriately
exercised. As a matter of practice, officials must always follow the commands
of the sovereign. For Hobbes, the point of having a non-circular argument is to

reason can establish (D. Gauthier, “Thomas Hobbes and the Contractarian Theory of Law” (1990)
16 Can. J. Phil. 5).

331 owe this suggestion to Michael Dila. See also T. Hobbes, Man and Citizen, B. Gert, ed. (Indi-

anapolis: Hackett, 1991) c. 2 at 130-31.

34Leviathan, supra note 14, c. 15 at 203-05.

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remove from subjects’ the opportunity to argue that they have rights apart from
those that they have under the law.

This suggests that for Hobbes the audience cannot be the individual rea-
soners in general, that is, the potential objects of oppression, because that would
require Hobbes to have a faith in reason which Leviathan denies. Most plausi-
bly, the reasoning of Leviathan is directed at those who already have power in
an effort to persuade them as to the best methods of consolidating their power
and to enable them to maximize the chances of establishing general peace and
security.35 I will now argue for that view in examining Ladenson’s attempt to
show that a Hobbesian conception of law can account for those features of a
legal system which Hart thinks require the rule of recognition account.

IV. The Persistence of Law and the Continuity of Law-Making Power

In Concept of Law, Hart identifies three main problems for the command
model of law. First, he does not think that the model accounts for the normati-
vity of law: the fact that the law claims authority. Secondly, he does not think
that the model can explain the persistence of law and the continuity of law-
making power. Thirdly, he claims that the model cannot deal with a fact of the
matter about all legal systems: that there are legal limits on sovereign power. 6

I agree with Ladenson that the command model, at least when understood
as Hobbes’s creation, does account for the normativity of law by offering a jus-
tificatory argument for the authority of law. We might not like the authoritarian
conclusion of the argument, but that is precisely because of the way it accounts
for the normativity of law. In this section, I focus on the problem for the model
of accounting for what Hart identifies as the continuity of law-making power
and the persistence of law.

Hart claims that the command model of law cannot plausibly deal with the
persistence of law: the fact that laws are often considered valid even though
they were made by an earlier legislator. Furthermore, Hart claims that the model
cannot deal with the continuity of law-making power: the fact that particular
sovereigns are considered to inherit the right to make law from their predeces-
sors.

37

Hobbes’s attempt to solve the problem of the persistence of law is to say
that the “Legislator is he, not by whose authority the Lawes were first made, but
by whose authority they now continue to be Lawes.” a Hart says that such a doc-
trine is unacceptable because it makes the validity of past statutes depend on
their recognition by the courts. It is not that Hart objects to recognition by the
courts being the key: this is what the rule of recognition amounts to. His objec-
tion is that for Hobbes such law is valid only if the sovereign tacitly acquiesces

Press, 1989).

35See D. Herzog, Happy Slaves: A Critique of Consent Theory (Chicago: University of Chicago
36For the first problem, see Concept of Law, supra note 1, c. 2 at 19-20, c. 5 at 77-88. For the
371bid., c. 4.
38Leviathan, supra note 14, c. 26 at 315.

second and third problems, see Concept of Law, ibid., c. 4.

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to it, so that ultimately Hobbes’s explanation rests on a highly implausible claim
that the sovereign has put his mind to each legal datum. 39

But, as Ladenson points out, it is perfectly open to Hobbes to suggest as
a matter of general policy that past statutes persist until explicitly overturned.0
Hart, it seems, does not see this as an option because he supposes that the rule
of recognition, understood here as the practice of the courts, has to figure as the
ultimate ground in the explanation of why such statutes are valid. For him, sov-
ereignty cannot be the ultimate ground of the explanation because the rule of
recognition is ultimate. But that is to beg the question against Hobbes.

One can make this point even more forcefully by noting that the Hobbesian
justification for sovereignty might require of sovereigns that they enact such a
policy, or, failing this, require of judges that they adopt such a policy, even if
the sovereign has not so commanded them. That is, since order and certainty are
obviously served by the assumption that past statutes continue to be valid unless
repealed, sovereigns should command this or judges should presume that this is
the case.

Of course, if a past statute were contrary to the present will of the sover-
eign, he could repeal it either directly or indirectly. This consideration justifies
judges adopting the fiction that the sovereign tacitly acquiesces in the statute’s
validity. In fact, a judicial decision as to continued validity might be thought of
as posing directly to the sovereign the question of whether he in fact approves,
or at least does not disapprove, of the continued operation of the statute. It
would follow that his inaction after such a decision would be strong evidence
of real tacit approval, or, at least, of no active disapproval. And against a back-
ground of this kind of activity, judges would in fact have good reason to assume
that by implication a sovereign intended a policy of continued validity of past
statutes.

This line of argument in a sense requires the concept of a rule of recogni-
tion, since it says that judges should adopt as a matter of practice a criterion of
validity that requires the recognition of past statutes. But Hart must reject this
argument since it does not rest upon facts about criteria in particular rules of rec-
ognition, but rather upon the Hobbesian justification for a positivist conception
of sovereignty and law.

As for the continuity of law-making power, Ladenson says that ingrained
traditions might make it possible that the acceptance which one sovereign –
enjoyed will lead to almost immediate acceptance of the rule of the
Rex I –
next sovereign – Rex II. There is no certainty that Rex H’s commands will be
obeyed and Hobbes does not tell us why such traditions might be effective.
Ladenson says that this is a question for the sociology and not the philosophy
of law.4 But it is worth noting that Hobbes does not make this distinction and

of judicial decisions. See Leviathan, ibid., c. 26 at 315-16.

39Concept of Law, supra note 1 at 63-64. Hobbes uses the same device to explain the validity
40Ladenson, supra note 6 at 146.
4’ibid. at 147.

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in fact suggests that a wise sovereign will see to it that practices are in place to
ensure a line of succession which is not problematic.4″

Hart also wants to say that Hobbes cannot account for the fact that Rex II
is presumed to have a right to succeed in virtue of some rule of succession. For
Ladenson the idea of a justification right provides the appropriate response to
Hart. For a Hobbesian, if someone has both governmental power and the gen-
eral acquiescence of subjects, he has ipso facto the right to rule.43

Moreover, Ladenson argues that any deeper claim is mistaken. If the claim
is that the right is inherited in virtue of the legitimacy of the past sovereign, one
can ask: in virtue of what did he have a claim? One will be driven, Ladenson
says, either to a theory of the divine right of kings or to a theory about voluntary
agreement which has to deal with the question of how such an agreement can
bind future generations.’

Ladenson’s point against Hart is forceful because Hart, as we have seen,
wants to avoid any argument for the legitimacy of law. It becomes even more
forceful when we note that Hart’s account of the rule of recognition rests on
very much the same basis as a Hobbesian account of the continuity of sover-
eignty. For Hart, the rule of recognition explains both the persistence of law and
the continuity of sovereignty. It tells us that there is an ultimate rule which
authoritatively settles issues about what is to count as law. But surely that fails
to address the fact of the continuity of the rule of recognition. According to
Hart, the rule of recognition exists in virtue of two facts. On the one hand, there
must be a practice of officials which manifests their ongoing acceptance of the
rule as containing the appropriate standards for identifying law. On the other
hand, there must be general acquiescence of subjects to the rule of that law. He
says also that questions about the validity of the rule of recognition, that is,
about why the officials continue to accept it, cannot arise within a particular
practice of law. To ask such questions is to step outside the practice.45

Thus Hart must think that there is no need for any deeper explanation of
the continuity of the rule of recognition other than pointing to the fact that the
legal system in which the rule of recognition exists is effective and that legal
officials accept the rule as appropriate. Of course, eliminating a search for a
deeper explanation has radically different implications for Hobbes, on the one
hand, and for Ladenson and Hart on the other.

For Hobbes, the search is eliminated because it will undermine the legiti-
macy of law. The fact that there can be no deeper ground for legitimacy is for
him the reason that law is legitimate. For Hart, and apparently for Ladenson as
well, the search is eliminated because it ends up presupposing the legitimacy of
law. But that is because they suppose that there is justice beyond law. In other
words, while Hobbes’s positivism is meant to pre-empt subjects and officials
from taking an external point of view, that is, one which assesses the law from

42Leviatzan, supra note 14, c. 20 at 248-51.
4OConcept of Law, supra note 1 at 53-54; Ladenson, supra note 6 at 147-48.
44Ladenson, ibid. at 147-48.
45Concept of Law, supra note 1 at 104-05.

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the standpoint of standards outside of the law, Hart’s (and Ladenson’s) is meant
to encourage them to do so. I will now argue that only Hobbes’s position can
make sense of both a positivist conception of law and of the place of a rule of
recognition within such a conception.

V. Legal Limits on Sovereignty

It should be recalled that Ladenson does not want to reject a rule of rec-
ognition account of law. Clearly, he thinks that such an account makes sense of
legal systems in which there is an effective separation of powers and thus legal
limitations on sovereignty. While he acknowledges that Hobbes rejected the
doctrine of separation of powers, he argues that a Hobbesian conception of law
can account for such a separation. Since he regards such legal limits as consis-
tent with a Hobbesian account of law, he must also think that the very same jus-
tification right which supports that conception supports the rule of recognition. a6

The Hobbesian account of the separation of powers is simply that there has
come into being more than one branch of government, and that each branch has
effective, that is, generally accepted, power. Thus, according to Ladenson, a
Hobbesian can conceive of a judiciary with the power given by an entrenched
bill of rights to test the validity of legislation. A Hobbesian can even conceive
of the electorate as possessing governmental power within a certain scope, that
is, power over the selection of political leaders.

But that one can conceive of the separation of powers in the abstract does
not tell us why, in practical terms, Hobbes rejected the doctrine of separation of
powers. For Hobbes, it was not that the idea of limits on sovereign power was
in the abstract impossible, but that it was in the concrete dangerous, given his
argument for his conception of law.

That conception of law is positivist in that it holds that the content of law
is that which is determined by publicly accessible factual tests, that is, without
resort to moral argument. Law has to have this form because if the content of
law is made dependent on the conclusions of moral argument, the spectre of
civil war looms. At every point, Hobbes argues for political and legal institu-
tions capable of pre-empting natural reason.

Thus he is against democracy and in favour of monarchy because he thinks
that democratic assemblies re-enact the state of nature in their deliberations and
thus are less effective sources of artificial, pre-emptive reason.47 He disapproves
of allowing towns or political groupings too much room to acquire power, in
case they should challenge the sovereign.”a He wants the universities to be used
to indoctrinate future leaders in the doctrine that might is right.49 He argues that
one should strip the fagade of objectivity away from the common law so as to
deprive judges of their basis for reinterpreting statutes to suit particular inter-

4 6Ladenson, supra note 6 at 151-57.
47Leviatlzan, supra note 14, c. 19.
4 8Jbid., c. 22.
4 91bid., c. 30 at 383-85.

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ests, instead of in accordance with the actual reason of the sovereign.” He also
wants to disestablish established religions because of their propensity to com-
pete with secular sovereignty.-”

All of these arguments are couched in the form of advice to holders or
potential holders of sovereign office. We might think of this advice as prudential
rather than moral, since Hobbes is telling sovereigns what makes order possible,
and not what the content of good order is.

Hobbes also gives lots of what we can think of as moral advice. His prem-
ise in chapter 13 of Leviathan is the natural equality of all men. And in many
places, especially in his criticism of common law judges,52 he shows his hostil-
ity to claims of privilege made on the basis of a false perception of the natural
superiority of the powerful and the wealthy. His moral advice to sovereigns can
be summed up as advocating the orderly and equal distribution of the greatest
possible amount of negative liberty to all subjects. 3

But since he assumes both that any order is better than the threat of disor-
der and that good order is possible only if one assumes the legitimacy of any
order, his moral advice is not for the ears of subjects in general. It is sovereigns
who must decide on the content of the order they establish. As a result, success
as a sovereign is first and foremost dependent on heeding the bits of prudential
advice. Of course, at a certain point the moral and the prudential advice might
be thought to coincide. For example, Hobbes’s concession of a right to resist-
ance on the part of the subject who is threatened with punishment or whose
security is no longer guaranteed is required by his discussion of the laws of
nature. But at the same time in the concession of that right one hears a counsel
of prudence to sovereigns to respect the natural equality of all subjects.’

Indeed, I suspect that the categorization of Hobbes’s advice as moral or
prudential may distort Hobbes’s arguments when these arguments are squeezed
into these categories for very much the same reasons that I do not think that
Hobbes would make a sharp distinction between the philosophy and sociology
of law. For Hobbes, there is an intimate connection between one’s philosophical
justification for political order and the actual design of political order. But my
point here is only one about the priority of a certain kind of argument in Levi-
athan and of the practical consequence of that point: that, on Hobbes’s view,
both officials and subjects are supposed to obey the law and not trouble them-
selves with questions about the legitimacy of law.

5 0See J. Cropsey, ed., A Dialogue Between a Philosopher and a Student of the Common Laws

of England (Chicago: University of Chicago Press, 1971) [hereinafter Dialogue].

51See D. Johnston, The Rhetoric of Leviathan: Thomas Hobbes and the Politics of Cultural
Transformation (Princeton: Princeton University Press, 1986) at 213 [hereinafter Rhetoric of Levi-
athan]. Hobbes could not say this explicitly but, with Johnston, I take it to be the point of c. 32-47
of Leviathan.

52Dialogue, supra note 50.
53According to my argument, this is how one should understand the laws of nature set out in

Leviathan, supra note 14, c. 14-15.

54See Dialogue, supra note 50, and especially Leviathan, ibid., c. 15 at 212.

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Therefore, to use Lon Fuller’s term, it would for Hobbes be an “inconsid-
erate sovereign” ‘ who established a democratic form of government, or who
allowed free thinking in the universities, or who set up a charter of rights and
freedoms which permitted judges to test the validity of legislation against their
natural reason in the guise of applying the dictates of sound morality. It is not
that these steps are conceptually impossible, but just that each is a time bomb,
waiting to explode order. It is not that Hobbes’s conception of law is unable
formally to accommodate the idea, for example, of a charter of rights and free-
doms, but that he regards such a charter as inherently destabilizing.

It should be noted that for Hobbes the official obligation to apply the law
has to be rather different in kind than the obligation of subjects to obey the law.
In regard to subjects, Hobbes has no qualms about riding roughshod over the
distinction between the idea of being under an obligation and the idea of being
obliged by force which launches Hart’s own argument for a positivist concep-
tion of law. Hobbes is committed to the view that there is no distinction since
he thinks that it is only against the backdrop of superior force that the obliga-
tions of civil society can come into existence. 6

It is of course better if subjects understand the true position that the law is
legitimate, whatever its content. But if they don’t, and if, like Hobbes’s “Foole,”
they are prone to calculate whether, on their own understanding of their inter-
ests, it is in their interests to obey the law, then coercion must play its role.5
But it is surely a different matter for executive officials, since it is their job
to apply the law and to see to it that the law is actually obeyed. They must
accept that the law is legitimate. The example of judges, that is, of the officials
charged with authoritatively determining the content of the law, illuminates this
issue, especially because Hobbes recognizes that interpretation is an important
element in the authoritative determination of the law.5

On the surface, Hobbes’s remarks about interpretation are puzzling. First
on his list of “[t]he things that make a good Judge, or good Interpreter of the
Lawes”’59 is “[a] right understanding of that principall Law of Nature called
Equity” which he says depends on the “goodnesse of a mans own naturall Rea-
son …,0 The other things he mentions are all virtues which speak to the idea
of judicial independence in the service of determining what the (positive) law
actually is on a matter.”

Hobbes also says that:

the Intention of the Legislator is alwayes supposed to be Equity: For it were a great
contumely for a Judge to think otherwise of the Soveraigne. He ought therefore,
if the Word of the Law doe not fully authorise a reasonable Sentence, to supply

55See L.L. Fuller, The Law in Quest of Itself (Boston: Beacon Press, 1940) at’34-41.
56Leviathan, supra note 14, c. 13.
57For Hobbes’s attempt at a reply to the “Foole,” see Leviathan, ibid., c. 15 at 203-05.
“Ibid., c. 26 at 322.
59Jbid., c. 26 at 328.
6lbid.
611bid., c. 26 at 328-29.

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it with the Law of Nature; or if the case be difficult, to respit Judgement till he
have received more ample authority.62

Finally, in an earlier chapter, he says that “[i]t is true that they that have Sove-
raigne power, may commit Iniquity; but not Injustice, or Injury in the proper
signification.”’63

If one takes these remarks at face value, it might seem that Hobbes is say-
ing that where it is unclear what the law on a matter is, or even when the law
clearly seems to lead to an inequitable result, judges should resort to their own
natural reason, or their understanding of equity, to determine what the law is.
However, one must also take into account Hobbes’s view that all the laws
of nature, including the law of equity, are contained in the civil law, since our
only access to the laws of nature is via the content of the civil law in fact
declared by the sovereign. In addition, there is his claim that “Law can never
be against Reason.”‘

For the same reasons that Hobbes cannot allow subjects to second-guess
the sovereign as to what the laws of nature require, he cannot allow this priv-
ilege to judges. Judges have to have a grasp of the laws of nature that might be
lacking in subjects, precisely because they have to deal with hard cases, that is
cases where the law seems indeterminate. What the laws of nature require of
them in such cases is that they should strive to give effect to the sovereign’s
understanding of right and wrong. Or, if no such understanding is available, they
should interpret the law so as to maximize stability and order. The example dis-
cussed earlier of a Hobbesian account of the persistence of law illustrates just
this point.”

Indeed, if one attends to Hobbes’s understanding of how judicial access to
the laws of nature is to be gained, it is clear that all he lacks in his understanding
of the institution of positive law is the concept of a rule of recognition.’ For he
clearly sees that not only will judges require positivistic tests to determine the
content of laws (Hart’s primary rules), but also positivistic tests to determine the
sources of law (Hart’s secondary rules). Judges need to know via positivistic
tests what counts as valid law before they can set about the task of determining
the content of the law. The principle of judicial. independence which Hobbes
articulates is one which fits with his conception of judges as executive officials
whose job it is to obey and not to reason why. A rule of recognition makes this
possible.67

Now Hart would say that even if the concept of the rule of recognition is
all that is lacking in Hobbes’s model, this leaves a significant gap because that

621bid., c. 26 at 326.
631bid., c. 18 at 232. See also his ironic approval of Coke’s dictum that “Equity is a certain per-
fect Reason that Interpreteth, and Amendeth the Law Written” in Dialogue, supra note 50 at 101.

64Leviathan, ibid., c. 26 at 314, 316.
6 5See Section IV, above.
661 owe this point largely to discussions with Terry Burrell.
67For a similar account of the role of judges and the value of judicial independence in the work
of a contemporary positivist, see J. Raz, “The Rule of Law and its Virtue” in Authority of Law,
supra note 5, 210 at 216-17.

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concept requires that Hobbes admit something which he seems committed to
denying. That is, since the concept of the rule of recognition presupposes that
sovereignty is subject to legal limits, Hobbes, in recognizing the concept, would
have to drop the idea of the uncommanded commander.

Ladenson, as we have seen, thinks that a Hobbesian conception of law can
accommodate a rule of recognition. My suggestion here is that Hobbes is com-
mitted to the concept. I will now also argue that Hobbes’s idea of an uncomman-
ded commander gives him a better solution to the problems which Hart raises
in relation to that idea than the solution offered by Hart.

A helpful example is one which haunts Hart’s account of the rule of rec-
ognition. In South Africa in the 1950s, the Nationalist government was begin-
ning to establish its conception of racist order known as apartheid. The South
Af’ica Act, 190968 had established a Parliament, composed of two Houses,
which could pass laws on any matter by a simple majority of each House. The
Act also made a special provision in relation to two issues for which changes
in the law required a two-thirds majority of a joint sitting of the Houses. The
government was determined to do away with one of these protected provisions,
which gave people of mixed race (“Coloureds”) a vote on the common electoral
roll.

At that time, the government could not muster the two-thirds majority of
both Houses of Parliament required by the Act. It attempted to circumvent the
provision by simply ignoring the requirement. As such, the statute was passed
by a simple majority in each House. The Appellate Division, the supreme South
African court, declared the resulting statute invalid.69 The Court did the same
when a statute was enacted purporting to make Parliament the ultimate court of
appeal in constitutional matters.”0 Finally, the majority of the court, with one
dissent, upheld the validity of a statute which inflated the Senate to provide the
required majority.” It is worth noting that by this stage the government had also
enlarged the court from six to eleven judges, and there was no doubt about the
way the additional judges would vote on this matter.2

Hart’s final comment on such matters is, “all that succeeds is success”; 73
that is, since there can be no answer at law, whoever wins has the power to dic-
tate an answer.74 But this comment seems to negate the usefulness of the idea
of the rule of recognition, which Hart says is introduced as a cure for uncer-
tainty.75

6 8South Africa Act, 1909 (U.K.), 9 Edw. 7, c. 9 [hereinafter Act].
69 The Separate Representation of Voters Act, 1951, S.U.S.A. 1951, No. 46, was invalidated in
7 0The High Court of Parliament Act, 1952, S.U.S.A. 1952, No. 35, was invalidated in Minister

Harris v. Minister of the Interior, 1952 (2) SA 428.

of the Interior v. Harris, 1952 (4) SA 769.

7 1The validity of the Senate Act, 1955, S.U.S.A. 1955, No. 53, was upheld in Collins v. Minister

of the Interior, 1957 (1) SA 552.

72 D. Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective
of Legal Philosophy (Oxford: Oxford University Press, 1991) at 50-51 [hereinafter Hard Cases].

73 Concept of Law, supra note 1 at 149.
74Ibid. at 144-50, especially at 149-50.
75Ibid. at 92.

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At times, Hart implies that indeterminacy in the rule of recognition, and the
less dramatic but more common instances of apparent indeterminacy in primary
rules, is not a significant problem for the positivist account of law since inde-
terminacy occurs only at the margins of law. But he admits that the issue of
where the margins lie is itself marginal, that is, open to interpretation.76 So the
claim that indeterminacy can be kept to the margins is, as proponents of Critical
Legal Studies have pointed out, hardly convincing in conflicts of interpretation
over primary rules. It becomes even more unconvincing in the case of the most
fundamental rule of the legal system.

Further, if the concept of the rule of recognition is required by Hobbes’s
idea of sovereignty, and by what lies behind that idea, that is, the claim that
effective government power is legitimate, then Hobbes has a solution which
Hart lacks. In such conflicts, Hobbes is clear that he who has effective power
is also sovereign. As such, the judges should have decided the matter by recog-
nizing that the government was entitled to have its way in the first place.77 By
the time of the second round, when the issue had, as it were, been remitted to
the sovereign for further decision, the judges were surely way out of line in dis-
obeying the government’s will.

In particular, Hobbes would reject the justification for the judicial resist-
ance to the government in this case; which was that the idea of a High Court
of Parliament violated the principle of judicial independence. For Hobbes the
principle of judicial independence, which follows from a correct understanding
of the laws of nature, speaks to judges faithfully executing the commands of the
sovereign. 7′ Here, as in the case of the Hobbesian solution to the problem of the
persistence of law, it is Hobbes’s justificatory argument for positive law that
determines the outcome.

Hart’s response must surely be that there is a gap: the rule of recognition
is itself indeterminate and so there is no answer to the question. But this
response begs the question of why indeterminacy, which in these cases is the
result of a conflict of interpretation, is equivalent to a gap. Why do we have to
suppose that the sovereign is himself always subject to some fundamental pos-
itivistically determined rule, so that when there is no such rule available we
have to conclude that there is no answer as to who is sovereign?

One answer suggested by much of what Hart has to say is that the rule
of recognition account follows from a correct analysis of the concept of law.
That is, the rule of recognition account is true as a matter of correct analysis of
concepts and not because it is supported by a compelling justificatory argu-
ment.79

However, Hart himself is not entirely satisfied with this answer. Most sig-
nificant here are two of Hart’s recent admissions. First, Hart admits that his ana-
lytical argument fails to supply an account of what reason judges have for

76See especially Essays, supra note 5 at 71-72.
77Compare the discussion in Ladenson, supra note 6 at 144 note 14, 154-55.
7SLeviathan, supra note 14, c. 26 at 327-29.
79See Concept of Law, supra note 1 at vii-viii; Essays, supra note 5 at 50-56, 65.

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adopting the rule of recognition. Secondly, he concedes that an account which
says that, at least from the perspective of judges, the reason must be a
moral one, is the obvious candidate but the one which he most wants to re-
sist.0

In contrast, Hobbes’s justificatory argument for positivism explains not
only why judges should adopt positivism, but also deals with problems which
plague a rule of recognition account claiming to be the product of pure analyt-
ical argument. Hobbes not only tells us why judges should adopt a rule of rec-
ognition, he points judges towards an answer in cases of apparent indeterminacy
in the rule of recognition. As Carl Schmitt perspicuously put it, for a Hobbesian,
the sovereign is he who decides on the exception.8

Hart is particularly badly placed to deny this point. Whenever he tries to
articulate either the workings of the rule of recognition, or an account of its ori-
gins, he puts forward a Hobbesian justification for the legitimacy of effective
power as the bulwark against uncertainty and chaos.” Of course, he wants to
claim that he is saying nothing about the legitimacy of law in putting forward
these arguments. But if it is Hobbes’s justificatory argument alone which can
explain why we might think that mere facts about effective government power
transmit normative force to law, the question is whether that claim is open to
Hart.83

The only way in which it would be open to him is if there were no plausible
alternative account of the concept of law. We would then have to adopt a rule
of recognition account, not because of Hobbes’s argument for the legitimacy of
law, but because this is simply how law works. If we also believe that we can
have access to sound morality through methods other than the artificial reason
of a sovereign, we might then suppose that we should always be prepared to ask
whether the law that in fact exists is legitimate. And Hart at times suggests that

80H.L.A. Hart, Essays on Bentham: Jurisprudence and Political Theory (Oxford: Oxford Uni-

versity Press, 1982) at 262-68.

gie: Vier Kapitel zur Lehre von der Souveriinitdt (Berlin: Duncker und Humblot, 1990) at 11.

81C. Schmitt, “Souverdin ist, wer fiber den Ausnahmezustand entscheidet” in Politische Theolo-
2Concept of Law, supra note 1 at 92. Stephen Perry has pointed out that my argumentative strat-
8
egy might miss altogether Joseph Raz’s positivist account of authority which is non-Hobbesian but
nevertheless supplies an external justification for law. In his article, “Authority and Justification”
(1985) 14 Phil. & Pub. Aff. 3, Raz argues rightly against Ladenson that he is mistaken in thinking
that because there can be a political authority which is not owed a duty of obedience, there can
also be a public authority which does not claim that it is owed such a duty (ibid. at 4-5). Raz’s
own explicitly non-Hobbesian argument is complex and he concludes that no political authority is
ever completely legitimate; it is always up to the individual to decide whether to obey the law or
not. But Raz’s argument depends crucially on what he calls the “pre-emption thesis” –
that the
fact that an authority requires performance is a reason for performance which is not to be added
to other reasons, but should exclude and take the place of some of them (ibid. at 13). This pre-
emption thesis does no more than restate Hobbes’s definition of command (see text accompanying
note 20) with the proviso that the legal subject should him or herself decide whether to accept that
the authority of the political sovereign is legitimate. But since, as we have just seen, Raz himself
thinks that all defacto political authorities will claim that they are owed a duty of obedience, and
since he adopts a Hobbesian understanding of what an authoritative directive amounts to, I find
it difficult to see how his own theory of authority helps Hart, if I am right about Hart’s predicament.

83See e.g. Concept of Law, ibid. at 89-96, 198-99.

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positivism, while it has the virtue of encouraging moral criticism of the law,
should be adopted first and foremost because it explains how law happens to
work. 4

But there are alternative conceptions of the nature of law, most notably
Dworkin’s.” And one way of understanding Dworkin’s position on the legiti-
macy of law is that law is legitimate because it is based on principles of sound
morality which are exposed and tested in legal argument. On this understanding
of Dworkin’s position, the argument for the legitimacy of law is circular.8 6

But, as I will now argue, the circularity is not vicious in the way that Hart’s
account of the rule of recognition is for two related reasons. First, Dworkin’s
account responds fully to the need which I have suggested tempts both Hart and
Ladenson into circularity. That is the need to provide legal subjects with a
resource to test the legitimacy of law. Secondly, Dworkin clearly sees that this
need cannot be responded to by a positivist conception of law.

According to Dworkin, we find out what law is by demanding the best
principled justification of existing law, on the assumption that the principles that
will figure in that justification will be to some significant extent sound moral
principles.’
It is the understanding of law as a matter of principles, rather than
as a matter of positivistic rules, that imports circularity. For the principled
understanding requires an argument about what law is which is at the same time
an argument about what law should be, and which takes place within the prac-
tice of law.

Thus the Dworkinian conception contrasts starkly with the Hobbesian jus-
tificatory argument, which has to take place outside the practice of law. As I
have shown, liberal positivists like Hart and Ladenson also think that arguments
for the legitimacy of law have to take place outside the practice of law. But for
Hart, and perhaps for Ladenson as well, because the range of available external
arguments is deeply suspect, law is not in and of itself legitimate.

It should be noticed how, in a sense, Hart does put forward an argument
about, though not for, the legitimacy of law which is external and non-circular.
It is that law is legitimate when and only when its content contingently corre-
sponds with the dictates of sound morality.88 My challenge to him is that this
argument is not one that can be deployed by judges who have to determine what
law is in accordance with what a positivistically understood rule of recognition
identifies as law.89 So we can see how non-circular justificatory arguments

:4Ibid. at vii-viii.
85See generally Taking Rights Seriously, supra note 5; Law’s Empire, supra note 5.
86Dworkin in fact resists adopting this understanding. See his response to critics in M. Cohen,
ed., Ronald Dworkin and Contemporary Jurisprudence (Totowa, N.J.: Rowman & Allanheld,
1983) at 254-60. For my own argument as to why he should not eschew this understanding, see
Hard Cases, supra note 72, c. 10.
87See Taking Rights Seriously, supra note 5 at 66; see generally Law’s Empire, supra note 5.
88Concept of Law, supra note 1 at 206.
891n fact, that argument is not open to judges on any conception of law, except on some versions
of Critical Legal Studies which suppose that Hobbesian arguments about the hopeless indetermi-
nacy of the common law apply to all modes of law including statutes.

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might be required for positivistic conceptions of law, but cannot be employed
to justify law conceived as a matter of (sound moral) principles.

It is precisely the internal nature of the justificatory argument for law con-
ceived as a matter of principles that troubles contemporary positivists. Because
the principled conception of law seems committed to there being some legiti-
macy to all law, it seems to ascribe legitimacy to even the law of wicked legal
systems. Worse yet, it assumes that the principled basis for such law is by def-
inition a sound one. It would therefore seem that Dworkin must think that the
apartheid principles that are the official policy behind the wicked laws of South
Africa are principles of a sound morality. Thus to succeed as a plausible rival
to legal positivism, a Dworkinian conception of law has to do more than provide
an adequate account of functioning legal systems. It has to rebut the charge that
it legitimates wicked law.

But, as I have already suggested, Hobbesian positivism must also rebut that
charge, given the way it seems that Hobbesian judges would have to decide at
least one set of decisions in the wicked legal system of South Africa. Dworki-
nian judges would ask the same question in such cases as Hobbesian judges:
what is the best principled justification for effective government power? But
they would be open to the argument that the principled justification is one that
relies on legal principles that require government to abide by certain constraints
if it is going to govem through the medium of law. That option is, as I have sug-
gested, closed to Hobbesian judges because the principled justification on which
they rely is an argument for the legitimacy of brute government power.

My claim is not that Dworkinian -judges would have triumphed over the
apartheid regime. It is undeniable, as the court-packing measure shows, that a
determined and powerful government will ride roughshod over judges who
stand in its way. But Dworkinian judges would have used right to expose the
true nature of the might exercised in these circumstances, rather than using the
language of right to legitimate and cloak that might.

Furthermore, the history of the adjudication of the apartheid laws since
those decisions reinforces this conclusion. On the one hand, positivistically-
minded judges employed tests which sanctioned apartheid policy. On the other
hand, a minority of judges who were always alert to find a principled basis for
statutory interpretation managed to resist that policy by requiring executive offi-
cials to comply with common law principles of reasonableness, fairness and
equality which were at odds with that policy.9″

It is significant that the government, in order to counteract this kind of
interpretation, often had to resort to statutory forms which showed a clear inten-
tion to take the task of interpretation away from the courts altogether, thus giv-
ing a free hand to executive officials. To a large extent, the government was
saved from altogether blatant exercises of this kind. For the majority of judges
were prepared to find that executive officials had such a free hand because they

9 0For a detailed account, see Hard Cases, supra note 72, c. 3-7.

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adopted positivistic tests that led to this result. In this way, they helped to cloak
might with right.9

The lesson to be learned here is that if one’s conception of law includes the
idea of independent judges deciding what law is by resort to something that
transcends the mere fact of government power, then when government finds it
necessary to bypass adjudication in order to be effective, law itself is at stake.
Law is not however at stake if one’s conception of law, and thus of the judicial
role, is positivistic. According to a positivistic model, judges are seen as mere
executors of the content of legislation that government has seen fit to inject.
I suggest that the move Hart seeks to make on behalf of legal positivism
away from the idea of the uncommanded commander is prompted by the desire
to move away from the Hobbesian justificatory argument for the legitimacy of
existing government power. Hart’s sense that there is more to obligation than
effective coercion and his attempt to find a basis for legal limits on government
power, guaranteed by a judiciary, support this suggestion.

If I am right that in order to make that move one has to adopt a principled
conception of law, which is based on a circular argument for the legitimacy of
law, this would explain why Hart ends up with a circular account of the rule of
recognition. And as Ladenson’s own slip into circularity shows, a positivist con-
ception of law is required by Hobbes’s non-circular justificatory argument pre-
cisely because Hobbes wants to pre-empt public debate about the legitimacy of
law. Thus it should come as no surprise if positivism in practice has the author-
itarian implications which Hobbes meant the positivist conception of law to
have.

Earlier, I identified what we can think of as a pragmatic tension in Hob-
bes’s position. This tension exists between his moral theory, that is, his commit-
ment to equality, and his pessimism about reason which leads him to argue for
the priority of order over good order. This same tension is reproduced in Hart’s
legal positivism. Ironically, it is made deeper by Hart’s greater confidence in
reason.

The tension has remained buried because of several factors. One is Hart’s
powerfully expressed aim of providing a conception of law that would facilitate
the testing of the legitimacy of law. Another is that rival conceptions, because
they argue for an internal legitimacy of law, have apparently had trouble dealing
with wicked legal systems. Finally, there is the claim which I have not yet suf-
ficiently discussed, that in hard cases judges have a discretion ultimately unde-
termined by law as to how to decide the case.

For contemporary positivists, discretion allows for the entry of social and
political values into law through judicial interpretation. That is, since in hard
cases there is no result determined by law, the judge has to make a value-based
decision as to what the law should be. As I suggested at the beginning of this
article, it is this claim that deadlocked the debate between Dworkin and the pos-
itivists. The more Dworkin shows that adjudication is a matter of choosing

91See ibid., especially c. 7.

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between principles, the more positivists think that he has proved their thesis
about discretion.

Indeed, Dworkin, in criticizing positivism, has often found himself faced
with the seemingly impossible task of having simultaneously to attack two very
different targets. On the one hand, there is the positivism which requires judges
to settle hard cases by resort to a Hobbesian justification for positive law. On
the other hand, there is the positivism which tells judges that there is no law in
such cases. And contemporary positivists like Hart and Joseph Raz pronounce
themselves to be positivists of the second sort when positivism is alleged to be
authoritarian.92

It follows that these positivists would reject my characterization of the
majority of South African judges as positivist. They would say that in hard
cases on the interpretation of apartheid laws, judges should have exercised their
discretion in the most productive way.93 But is this response open to them, given
both Hobbes’s justification for a positivist conception of law and the existence
of Dworkin’s rival conception?

For Hobbes it is true by definition that if principles have to be resorted to
in interpretation, there is no answer at law. Since the relevance of principles
involves deciding on the basis of moral argument, and since he is a subjectivist
about morals, for him the relevance of morality means the indeterminacy of law.
But it is strange for contemporary positivists, who are cognitivists about morals,
to assume the equivalence of morality and indeterminacy.

For this reason, the “incorporationist” offshoot of positivism is developing.
Incorporationists hold that when, as a matter of fact, the law- makes sound moral
principles relevant to the decision of a hard case, and when those principles do
determine a decision, there is in fact a decision determined by law. What binds
incorporationists to the positivist tradition is, first, that they hold that whether
sound principles of morality are embedded in law is always contingent on
whether the principles have, as a matter of fact, been so embedded. And, sec-
ondly, they suppose that recognition that the presence of such principles is con-
tingent allows them to preserve what they take to be the main virtue of positiv-
ism: that it regards the legitimacy of law as contingent on the content that law
happens to have.94

But the incorporationist offshoot in fact shows why the positivist thesis
about discretion has to be rejected. If the reason for regarding law as a matter
of facts rather than principles is Hobbes’s, then in cases like those on the inter-
pretation of apartheid laws, positivist judges will rarely find that sound moral
principles should determine their decisions. There will be an ample resource of
facts of the kind that Hobbes’s justificatory argument for positive law would
identify which will determine their decision.

92See Authority of Law, supra note 5 at 180-209.
93See J. Raz, “Dworkin: A New Link in the Chain” (1986) 74 Cal. L. Rev. 1103 at 1111.
94See e.g. E.P. Soper, “Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute”
in Cohen, ed., supra note 86, 3; J.L. Coleman, “Negative and Positive Positivism” in Cohen, ed.,
ibid., 28; D. Lyons, “Moral Aspects of Legal Theory” in Cohen, ed., ibid., 49.

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Indeed, as Dworkin has suggested, such hard cases do not arise because of
indeterminacy but, rather, because of over-determinacy.” It is not because there
is no answer as to what the law is, but because there are rival answers that there
is a problem of interpretation. And that rivalry goes all the way down to the dif-
ferent justifications in political morality for preferring a conception of law as a
matter of fact or a conception of law as a matter of principle.

Conclusion

I have argued that all conceptions of law are also conceptions of legitimate
law.96 The main difference between rival conceptions is whether their argument
for legitimacy comes from outside the practice of law or builds on principles
internal to law, that is, what Fuller described as an “inner morality of law.”97
And, in view of the authoritarian implications of a conception which relies, con-
sciously or not, on an argument for legitimacy that comes from outside the law,
my conclusion is that one should prefer a conception which attempts to make
sense of law first and foremost as a matter of principles internal to legal prac-
tice.

Debate about such issues in legal philosophy has direct implications for
political philosophy. Hobbes clearly announced the critique of modem society
of which Alisdair MacIntyre’s After Virtue is the most striking contemporary
evocation.9″ Hobbes saw that once religion has been disestablished, one is left
with the fractured survivals of formerly total world views. His war of each
against all is, I think, best understood not as the war of unconstrained maximiz-
ers, but as the clash between these fractured visions in their attempt to regain
control over the whole.

Unlike MacIntyre, Hobbes welcomed this disestablishment. The last part
of Leviathan is best read as arguing subtly for the hastening of this process.99
It is only, Hobbes thought, when religion is disestablished that a social and
political world can be created in which the natural equality of all individuals is
respected.” He is a liberal, but no democrat, since he thinks that democracies
are the prey of special interest groups, each trying to gain control over the whole
in part by a spurious claim that their interest is the interest of all.’

But given his pessimism about individual reason, and given that he rejects
the traditional religious source of governmental legitimacy, Hobbes finds him-
self forced to argue for the legitimacy of defacto governmental power. Law, or
at least positive law, is to be taken not only as embodying public reason, but also
appropriate or right public reason. As Carl Schmitt showed, the imagery of the

95Law’s Empire, supra note 5, especially c. 1-3.
9 60f course, there are conceptions of law which seek to subvert law by showing its illegitimacy;

for example, some versions of Marxism. But these still present arguments about legitimacy.

97L.L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969).
98A. Maclntyre, After Virtue: A Study in Moral Theory (Notre Dame: University of Notre Dame

Press, 1981).

99Leviathan, supra note 14, c. 32-42. See Rhetoric of Leviathan, supra note 51.
10See Rhetoric of Leviathan, ibid.
‘0ISee Leviathan, supra note 14, c. 22 at 286-87.

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Leviathan tries to do the impossible: to draw on religious mythic sources at the
same time as demystifying power.”

Hobbes’s problem remains the problem of contemporary political philoso-
phy. Contemporary liberals accept Hobbes’s premise about natural equality and
his understanding of liberty as the absence of obstacles. And, like Hobbes, they
seem to regard their task as to preserve morality by ensuring that it is inviolable
from the raids of those individuals who are organized to take advantage of the
mechanisms of representative democracy.

Thus while liberals like Rawls want to use political philosophy to criticize
the status quo so as to bring the social and political order more into line with
people’s actual desires, they also seek to preserve social and political order from
the wrong sorts of desires. As does Hobbes, they fear the reign of subjectivity
that democracy seems to invite. Their Rational Contractor argument, like Hob-
bes’s, does not leave anything they consider of crucial importance to collective
deliberation.

Political theorists whose first allegiance is to democracy criticize liberals
for this reason. 3 But they are left in the uncomfortable position of adopting the
practical conclusion of Hobbes’s Rational Contractor argument. They conclude
that a decision is right merely in virtue of the fact that it was made by the assem-
bly with sovereign power.

The task for legal philosophy is thus one and the same as the task for polit-
ical philosophy. Can one construct a theory of public reason on a principled
basis which will place a great deal more faith in public reason than do liberals,
yet do justice to the substantive premise of individual equality which they and
democrats share?

My final suggestion is that Dworkinian legal philosophy offers us an
important clue. A conception of public reason which can manage this daunting
task will be one which contains arguments for principles that are already inter-
nal to the practice of public reason. And these principles will have to be capable
of ensuring that the results of reason are reasonable without severely restricting
the scope of issues on which the public is allowed to reason.”

12Schmitt, supra note 81,
10 3See e.g. M. Walzer, “Philosophy and Democracy” (1981) 9 Pol. Theory 379.
14For an intriguing attempt to follow that clue, see A. Gutmann & D. Thompson, “Moral Con-

flict and Political Consensus” (1990) 101 Ethics 64.