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Subject Area: Political Theory

Hobbesian Law & Authority - Leonard P. Liggio, Literature of Liberty, Autumn 1980, vol. 3, No. 3 [1980]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Hobbesian Law & Authority

Robert Ladenson

  • Illinois Institute of Technology

“In Defense of a Hobbesian Conception of Law.” Philosophy and Public Affairs 9(Winter 1980):134–159

Against H.L.A. Hart's objections, Ladenson defends a Hobbesian conception of law where the subjects habitually obey the sovereign who obeys no one. Since the Hobbesian conception of law leaves out the legitimacy of governmental authority, Ladenson proposes the following remedy. Governmental authority involves both governmental power—the ability to keep peace within a social group—and more importantly, a right to rule.

Ladenson denies that all rights have correlative duties. Only rights which involve claims made against other individuals have correlative duties. The right to rule is a “justification right.” In the case of governmental authority, the right to rule gives the government the right to engage in coercive action which would otherwise be impermissible if exercised by private citizens. Ladenson claims this right to rule is justified by human nature and the desire to avoid mutually destructive conflicts.

Since the right to rule, which is part of governmental authority, involves no claim that the citizens must obey the law or that any use of coercive power by the state is justified, one could uphold the government's right to rule while still maintaining the government ought not to exist. Ladenson claims this accords with common sense. For instance, this concept would imply that the Nazis, not private citizens, had the right to arrest traffic violaters, while also implying that the citizens had the right to resist Nazi rule.

Can the Hobbesian conception account for the persistence and continuity of law? As to persistence, if law emanates from the sovereign, why can laws made by an earlier regime still be law under later regimes? There could be a general policy that such laws will have effect unless explicitly overturned.

As to continuity, Hart raises two objections. According to the Hobbesian, a successor to an accepted ruler cannot be considered a sovereign at first, since we do not know if the subjects will accept him. Ladenson replies that such acceptance can begin immediately if there is a strong tradition of succession.

Hart's second argument is that the successor's immediate accession to the throne does not stem just from subjects' acceptance but from a right to make law grounded in a rule of succession. But, Hobbesian theory has no room for such a right. The author responds that the notion of sovereignty includes the right to rule. If the successor inherits this right to rule, the alleged rule of succession is irrelevant; if the successor has an uncontested right to rule he can exercise governmental power to make law.

Hart's most serious objection against a Hobbesian conception of sovereignty holds that it cannot give an account of a legislative power which is constitutionally restrained by the courts. Such a system would transcend sovereign laying down and upholding laws. Ladenson replies with a reconstruction of Hobbes. In the spirit of Hobbes, each branch of government could have sovereignty in carrying out its functions, but be subject to the sovereignty of other branches as they carry out their own functions. If it is true that each branch has the power to carry out their own functions and each resists encroachment on its terrain by other branches, then each branch has governmental power to maintain peaceful relations.