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Freedom Under an Order of Public Law: From Hobbes Through Hayek to

Republicanism

David Dyzenhaus

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Citation (published version)

Dyzenhaus, David, Freedom Under an Order of Public Law: From Hobbes Through Hayek to Republicanism (December 1, 2012). The Tragedy of Liberty, Andras Sajo and Renata Uitz, eds., Forthcoming.

Publisher’s Statement Dyzenhaus, David, Freedom Under an Order of Public Law: From Hobbes Through Hayek to Republicanism (December 1, 2012). The Tragedy of Liberty, Andras Sajo and Renata Uitz, eds., Forthcoming. Copyright © [2012]. Reprinted by permission.

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1

Freedom under an Order of Public Law: From Hobbes through Hayek to Republicanism

David Dyzenhaus1

INTRODUCTION

In ‘Two Concepts of Liberty’, Isaiah Berlin distinguished between negative and positive

liberty—respectively ‘freedom from’ and ‘freedom to’--and argued for the priority of

negative liberty. 2 Berlin argued that positive liberty is not liberty at all but rather a misleading

description of a plurality of values, for example, social equality, that compete with negative

liberty; hence, we should be wary of claims that any sacrifice in liberty to promote one of

these goods is no sacrifice because a gain in the good is by definition a gain in liberty. Berlin

was clear that such sacrifices are often morally justifiable, even required, but adamant that

the moral cost in making the sacrifice should be recognized and given its proper weight.

Berlin considered his defence of negative liberty as within the liberal tradition of the

‘classical English political philosophers’, and specifically endorsed Thomas Hobbes’s

definition of liberty: ‘a free-man is he that, in those things which by his strength and wit he is

able to do, is not hindered to do what he hath the will to do’.3 From this definition, Berlin

thought it followed that ‘Law is always a “fetter”, even if it protects you from being bound in

chains that are heavier than those of the law, say, some more repressive law or custom, or

arbitrary despotism or chaos’.4 Put differently, any law, no matter how laudable its goal, must

be seen as a restriction of liberty.

At the end of ‘Two Concepts of Liberty’, Berlin spoke of ‘an ideal of choosing ends

without claiming eternal validity for them’ and the ‘pluralism of values connected with this’.

2

He suggested that this connection might be ‘the late fruit of our declining late capitalist

civilization’. But, he said, ‘no sceptical conclusions’ followed.

Principles are not less sacred because their duration cannot be guaranteed. Indeed,

the very desire for guarantees that our values are eternal and secure in some objective

heaven is perhaps only a craving for the certainties of childhood or the absolute

values of our primitive past. ‘To realize the relative validity of one’s convictions’, said

an admirable writer of our time, ‘and yet stand for them unflinchingly, is what

distinguishes a civilized man from a barbarian’.5 To demand more than this is

perhaps a deep and incurable metaphysical need; but to allow it to determine one’s

practice is a symptom of an equally deep, and more dangerous, moral and political

immaturity. 6

This warning, written during perhaps the most fraught period of the Cold War, might well

seem of a piece with other jeremiads of the time, notably Friedrich Hayek’s famous warning

in 1944 that the forces of collectivism, whether they march under the banner of equality or

nationalism, would put Europe on ‘the road to serfdom’.7

This book, along with others, earned Hayek the reputation of the foremost exponent

of the position that negative liberty should be given not a complex, but an almost absolute

priority. However, Hayek’s position was more nuanced than often both his followers and his

detractors acknowledge. He did not so much argue that negative liberty should be given an

absolute priority as assert a tight connection between liberty and the rule of law, as in his

famous statement of the rule-of-law ideal in The Road to Serfdom.8

My focus in this chapter is on the connection between law and liberty, specifically on

the connection between law and the Republican idea of liberty as non-domination which

takes the idea of negative liberty as its foil. In my view, Republicans have done political

3

philosophy an immense service both because they have moved attention back to classical

themes about liberty and because they have so persuasively argued that the focus of this

attention should be the theme of non-domination. Moreover, Philip Pettit, the leading

philosophical spokesman for contemporary Republicanism has made the connection

between law and liberty central to his account of legitimate political authority.

However, as I will argue here, the main result of this contribution is to uncover

resources in the liberal tradition, sometimes in surprising places, not to provide an alternative

to it. Republicans regard Hobbes as the founder of negative-liberty liberalism and as having

put forward his understanding of liberty in order to contest and suppress that of the

Republicans of his day. However, as I shall show below, for Hobbes the chief virtue of the

rule of law is that it secures non-domination. Moreover, his argument about why it does so

might well prove superior to that of Republicans in that it shows in what way the rule of law

is constitutive of liberty and not merely instrumental to it, an insight that resonates in the

twentieth century in the work of such arch-liberals as Hayek.

FREEDOM AS NON-DOMINATION

In Republicanism,9 his philosophical reconstruction of the Republican tradition, Philip Pettit

argues for a conception of freedom as non-domination, which he regards as different from

both the negative and positive concepts of liberty discussed by Berlin. Pettit regarded

Berlin’s articulation of the connection between negative liberty and the conception of law as

a fetter as proof positive that for Berlin those ‘not attached to positive liberty allied

themselves invariably with the Hobbesian tradition’. That Berlin had in this way to ally

himself with Hobbes demonstrated for Pettit that Republican liberty had ‘not only been lost

4

to political thinkers and activists; it had even become invisible to the historians of political

thought’.10

Freedom as non-domination can be explained by using a standard example in

Republican literature. A slave with a benevolent master might be given lots of latitude to

make choices. But the slave is un-free in the sense of freedom as non-domination because

the master is entitled to interfere arbitrarily at any moment in the slave’s decisions. In other

words, domination consists in the subjection of an individual to the whims or arbitrary will

of another, whether of the state or of some private person or group, and freedom, on its

best understanding, is freedom from dependence on the will of another.11 Freedom as non-

domination differs from negative liberty is that it does not require that any actual or potential

desire of an individual be thwarted to register a loss of liberty—all that is required is the

capacity of someone else to interfere arbitrarily in the decisions that individual might choose

to make.

Pettit also argued that whilst on a view of freedom as non-frustration freedom is

always removed by interference, freedom as non-domination not only discerns a loss of

liberty in some situations in which there is no actual interference, but also does not suppose

that interference always removes freedom. If interference is non-arbitrary in that it tracks the

will of the individuals interfered with, it is also non-dominating. As Pettit has conveniently

summarized this argument:

In the classical republican tradition, this thought is most commonly expressed in the

refrain that an empire of law, unlike an empire of men, is not a dominating regime.

The laws may impose taxation on all, coerce all with the threat of punishment for

disobedience, and impose penalties on those who in fact disobey, but still, so the idea

goes, such interferences will not be arbitrary if they are framed in accordance with

5

the will of the subjects and framed so as to protect those subjects from domination

by others.12

And he quotes with approval Blackstone, who was ‘soon to be challenged by Bentham’:

‘Laws, when prudently framed, are by no means subversive but rather introductive of

liberty’.13

So far we can see that the Republican critique of liberalism has two strands to it.

First, they dispute the claim that interference is necessary for there to be a loss in freedom.

Second, they argue that actual interferences are not sufficient to reduce freedom, because if

the interferences are non-dominating there is no loss to freedom.

A third criticism arises out of Berlin’s observation that negative liberty is ‘not

incompatible with some kinds of autocracy, or at any rate with the absence of self-

government. Liberty in this sense is principally concerned with the area of control, not with

its source’.14 This observation might seem to make Berlin at best suspicious of democracy, at

worst hostile (as Hobbes clearly was) to it. We would then have evidence for the claim of

critics of liberalism that liberalism of a certain sort is an enemy of democracy or rule by the

people, since its defenders wish to establish ramparts around a protected area of negative

liberty to repel raids by a tyrannous majority. Moreover, the spatial description of liberty

adopted by liberals like Berlin—its ‘area’-- might seem to imply both that what is important

is the size of the area of choice and that the bigger the area the better. Proponents of

negative liberty are often thought to embrace both of these implications. The task of the

state--the ‘nightwatchman’ state--is confined to maintaining order only to the extent that

successful human interaction requires background conditions of order and stability, and a

democracy acts illegitimately if it enacts laws that go beyond securing these conditions.

6

In contrast, for Republicans it matters a great deal that particular laws have a

democratic provenance in order that citizens not be subject to ‘alien control’.15 And Pettit

argues in Republicanism that the institutional requirements for freedom as non-domination

include at least the following: that decisions about the collective good be made by a

democratically elected parliament; that the executive’s decisions about how to implement the

legislative programs enacted by that parliament be subject to rule-of-law requirements,

supervised by an independent judiciary; and that the political rights of citizens should be

guaranteed by an entrenched bill of rights, again supervised by an independent judiciary.

Indeed, whilst Pettit wishes to avoid institutional mechanisms that go as far as giving

individuals an individual power of veto of legislation, he also wishes to give them as many

opportunities as possible to ‘edit’ government policy, in order to ensure that it tracks their

interests, on their conception of what it is in their interests. The more democracy is

‘contestatory’, the better.16

BERLIN’S BREAK WITH HOBBES?

In a recent article, Pettit has offered a more nuanced understanding of Berlin’s position, and

thus of liberalism in general. He argues that Berlin’s own conception of freedom is not one

of negative liberty in Hobbes’s sense, which Pettit calls ‘freedom as non-frustration’, but

located on the path between negative liberty and liberty as non-domination. Berlin,

according to Pettit, puts forward an idea of ‘freedom as non-interference’ which occupies an

unstable place between these two other conceptions, and which can, Pettit argues, be

stabilized only if it moves in the direction of freedom as non-domination.17

7

Berlin, according to Pettit, explicitly broke with Hobbes in his own commentary on

‘Two Concepts of Liberty’ by moving from freedom as non-frustration to a conception of

‘freedom as non-interference’, and moreover suggested by implication in the actual essay just

this break. For in the commentary Berlin said: ‘The extent of a man’s negative freedom is, as

it were, a function of what doors, and how many are open to him; upon what prospects they

are open and how open they are’.18 Pettit comments that the ‘important point in this

metaphor is that the freedom of a choice turns, not just on whether the door you push is

open, but on whether all the doors are open, including those you might have pushed on but

didn’t’.19 In sum, it is implausible to suppose that you can make yourself more free by

adapting your preferences to the point that you prefer only the options in fact available to

you.

However, Pettit argues that Berlin’s freedom as non-interference is vulnerable to the

same kind of objection Berlin ends up making against freedom as non-frustration. For

freedom as non-frustration seems to permit that one can make oneself more free by

ingratiating oneself with a powerful person who could interfere with one’s options in order

to get that person to allow one to have one’s way.20 The problem with both adaptation and

ingratiation is that the freedom the individual has remains dependent on the will of

another.21 Hence, Pettit supposes, one should be led by Berlin’s argument for freedom as

non-interference to adopt freedom as non-domination. Not only must the doors be open,

but there must also be no doorkeeper who can close a door ‘more or less without cost’.22

Thus Pettit finds it unsurprising that Berlin also accepted other commitments dear to

the Republican heart—that freedom is the area of free action we have limited only by the

law, an area that is artificially carved out by the state, and that the freedom we have should

be ‘available equally to each, and should be as large as possible consistently with “the

8

existence of organized society”’.23 But Pettit suggests that one reason why Berlin did not

proceed on the logical path from freedom as noninterference to freedom as non-domination

is that he feared that such progress entailed embracing a doctrine of positive liberty.24

Berlin’s view in this regard is that doctrines of positive liberty have an inherent logic

that leads to the conclusion that incursions into the protected space of negative liberty do

not amount to any loss of liberty because they are justified by what the individual would

rationally prefer even if as a matter of fact the actual or empirical individual would not. It is

Berlin’s concern about this logic that led him to give priority to negative liberty. That is,

whilst Berlin recognized both that some valuable goods are pursued in the name of positive

liberty, notably equality, and that their pursuit might necessarily and justifiably limit negative

liberty, he wanted to emphasize that in calculating whether the gain in the good is worth the

cost to negative liberty, the cost must always be openly acknowledged and given its due

weight.

The problem for Berlin, then, with conceptions of positive liberty is not per se the

fact that negative liberty is limited. Rather, the problem is that the fact is not appropriately

acknowledged, and hence not properly weighed, because conceptions of positive liberty

suppose that there is no cost to liberty at all. But it follows, as Pettit rightly sees, that Berlin

would have been uncomfortable with the thought that the ideal of freedom as non-

domination is the logical terminus of his argument against freedom as non-frustration.

Moreover, I think it is clear that Berlin would have worried that freedom as non-

domination perpetrates the same ‘magical transformation or sleight of hand’ in denying the

loss to liberty as do conceptions of positive liberty.25 Here we should note that Berlin also

argued that such sleights could be perpetrated with conceptions of negative liberty, despite

9

the fact that they do not easily lend themselves, as do positive conceptions, to ‘splitting’ the

personality into the empirical and the ‘real’ or ‘rational’ or ‘ideal’ self.26

The obvious response open to Pettit is to say that it is just a liberal hangover to keep

thinking that the law infringes your freedom simply because it interferes with you. However,

Pettit is as averse as Berlin to the paternalism in positive liberty claims to the effect that an

individual is not the best judge of his or her own interests. On his view, there is no external

standard of excellence to which an individual’s choices must conform in order for that

individual to be truly free or rational. All that matters is that the individual is able to exercise

free, that is, non-dominated choices, whatever he or she decides to choose. Indeed, in his

most recent work Pettit says that the most harmful form of domination is actual interference

with actual desires, thus showing that something like the idea of liberty as non-frustration

has a central place in his political thought.27 These ideas undermine his argument that

liberalism goes wrong in supposing that there is something inherently wrong with actual

interferences even when that wrongness is compensated for by the gain in some other good.

Hence, I tend to agree with arguments made by some critics of Republicanism who

see it as in no major respect distinctive from central strands within the liberal tradition.28 I

will add to this criticism the reason that at the ‘low altitude’29 of institutional design, by

which I mean the design of institutions to ensure that government is according to law or in

accordance with the rule of law, Republicans, with some exceptions, find it difficult to

distinguish themselves from the liberal tradition. However, the exceptions are significant

because they embrace a conception of the rule of law that fits well the kind of negative

liberty version of liberalism to which ironically they are most opposed.

In addition, this embrace creates a problem that is not confined to this subgroup. It

displays a tension in contemporary Republicanism itself that explains both some

10

Republicans’ very partial reading of Hobbes and, more generally, a profound ambivalence in

Republican theory about the nature of political and legal authority.

I turn for this argument to the figure Republicans believe to be the cause of all the

negative liberty trouble, Thomas Hobbes. As I will show, Hobbes is as concerned as

Blackstone with the prudent framing of laws so as to make them ‘by no means subversive

but rather introductive of liberty’, or as Pettit himself puts it, with the Republican thought

that ‘to be a free person just was to be a citizen incorporated in the matrix of protection for

certain basic choices that is afforded to each—in theory, afforded equally to each—by the

rule of law’.30

HOBBES ON LAW AND LIBERTY

Pettit has argued more elaborately in other work along with Quentin Skinner that freedom as

non-domination is a chronologically prior conception of freedom to the other two. For, as

Republicans understand things, freedom as non-frustration was cooked up by Hobbes in his

bid to subvert the Republicans of his own day and their conception that one can only be free

in a free society, often equated with a political order of parliamentary democracy.31

Hobbes serves as the main foil for Republicans because they think that his

conception of liberty in Leviathan is designed to debunk the Republican ideal of a freeman.

They emphasize what they take to be Hobbes’s view that those who are subject to the

arbitrary will of an all-powerful sovereign are by definition free. As long as legal subjects live

under his rule and are not slaves or in chains, they must take themselves to have consented

to his rule and to regard all of his laws as just. It is rational for them to do so, because

however ‘obnoxious’32 subjection to the will of such a person seems, it is better than being

11

subject to the wills of all other individuals in a state of nature. But even if a subject fails to

appreciate the rational force of the argument for his obligation to obey the law, he will be

able to appreciate the force of the sanction with which he is threatened should he disobey.

Finally, from the perspective of liberty, it does not matter what kind of political regime one

lives under, whether it is democratic or monarchical, because the kind of political regime

does not affect the quality of one’s liberty.

There are, according to Pettit, two ‘surprising claims built into’ Hobbes’s definition

of liberty. The first is that you are only hindered in your choice if you actually prefer the

obstructed option. The second is that to be a ‘freeman’ is to escape all such ‘external

hindrance in the options you prefer to take’.33 The two claims are surprising because the first

makes it too easy to be free, whereas the second makes it too hard. Pettit suggests that the

second surprise, that one cannot be a freeman since we cannot escape all hindrances,

contains Hobbes’s fundamental challenge to the Republican argument that ‘to be a free

person just was to be a citizen incorporated in the matrix of protection for certain basic

choices that is afforded to each—in theory, afforded equally to each—by the rule of law’.34

The challenge is fundamental because it strikes at the very heart of Republicanism by

redefining the Republican idea of the freeman.

According to Pettit, as we have seen, the substance of the challenge resides in

defining freedom in such a way that it becomes impossible. However, it is important to

notice that the challenge works better on the basis of the first kind of claim, one that makes

it too easy to be free, with the upshot that one is always free, as long as one is living under

the protection of a sovereign, indeed, that one enjoys the same freedom whether one’s

sovereign is a dictator, or the ruler elected by the citizens of a self-governing republic.

12

This way of putting the challenge is closer in fact to what Hobbes says in the chapter

in which he gives the definition of freedom, if not to the definition itself, and it is the way

that Skinner supposes it mainly works.35 According to Skinner, Hobbes has a two-pronged

argument. In one sense of liberty, the sense of the definition, legal subjects are always free

because civil laws do not restrict liberty as they do not amount to physical impediments to

action. In another sense, legal subjects are always free because their civic liberty is simply the

freedom to act as they will in so far as the civil law does not prescribe a course of action, and

so freedom under the law is always the same everywhere.36

That two such eminent exponents of contemporary Republicanism, who happen also

to be leading Hobbes scholars, agree that Hobbes’s discussion of liberty is aimed at the

destruction of freedom as non-domination, yet seem to disagree about Hobbes’s strategy,

raises questions about how the strategy could have had the success they attribute to it. I will

argue below that the answer is that their disagreement about Hobbes’s strategy indicates that

they have both likely mistaken it. But the issue I wish to focus on goes beyond a claim that

Pettit and Skinner have attacked something of a straw man in choosing Hobbes as their

target. Rather, it is that their conception of freedom as non-domination is more a

reconstruction of Hobbes’s conception of liberty as liberty under an order of public laws

than it is a retrieval of a conception that Hobbes sought to subvert. In addition, to the extent

that their attack on Hobbes hits home in that their conception of freedom of non-

domination differs from his, Hobbes’s conception, or so I will argue, might have some

advantages.

This argument has to contend with the fact Hobbes does put in place all of the

major ingredients of the negative liberty view of freedom and law that Republicans contest.

For example, in The Elements of Law he says that the sovereign authority, when legislating

13

prohibitions on what was lawful to individuals in the state of nature, must ensure that ‘well

meaning men may not fall into the danger of laws, as into snares, before they be aware’.37

That is, in this passage, Hobbes does suggest both the image of law as a fetter and that the

image fits with his understanding of freedom as the ‘natural liberty’ of the state of nature.

Moreover, since he also says that the sovereign should not put in place a ‘restraint’ that goes

beyond ‘what is necessary for the good of the commonwealth’,38 he might be taken to be

hinting at the kind of libertarian view that says that the less there is by way of restraint the

better. The sovereign should seek to put in place only what is necessary to maintain order

and stability. (It could, of course, be no more than a hint since for Hobbes the extent of

liberty is entirely up to the sovereign to decide.)

But, as we have seen, Pettit and Skinner seem undecided about how Hobbes’s

strategy works. They divide over whether Hobbes makes it too easy be to free or too

difficult, with Skinner supporting the first option, and Pettit the second. Whilst Skinner

would say that for Hobbes legal subjects are equally free, no matter the nature of their

political regime, Pettit must say that they are equally unfree--that subjects are in substance

the slaves of their sovereigns.39

The political effect of the strategies is the same, as they both issue in the conclusion

that the nature of one’s political regime is irrelevant to the question of how free one is.

However, as I suggested, Hobbes’s challenge works better on the basis of the claim that

makes it too easy to be free. For the upshot of that claim is that one is always free, as long as

one is living under the protection of a sovereign, indeed, that one enjoys the same freedom

whether one’s sovereign is a dictator, or the ruler elected by the citizens of a self-governing

republic. In addition, this claim fits better with the main elements of Hobbes’s picture of

politics, as just painted, in which law is conceived as a fetter on natural liberty. Subjects

14

consent to the way in which the sovereign fetters their natural liberty with his laws because

that gives them the security to enjoy what remains of our natural liberty; that is, subjects may

do as they like insofar as the law is silent as to their obligations. And this seems to be exactly

Hobbes’s view in The Elements of Law.

However, even though Skinner’s view is to be preferred, it does encounter a major

problem, as does the claim that Hobbes sees law as a fetter. For Hobbes does not think that

a civil law is capable of fettering natural liberty since he holds that fear of coercion does not

count as an obstacle to the will. As Pettit and Skinner have discussed elsewhere, Hobbes did

not consider the sovereign’s laws to be constraints on liberty since one is physically free to

disobey the laws. Fear, in this case fear of punishment, is for Hobbes not a fetter or

constraint on liberty.40

Moreover, when we fill in the picture of Hobbes’s political and legal theory with

finer brush strokes, with Leviathan as our palette, the image of law becomes more nuanced.

And with nuance our understanding of how Hobbes conceived of the arbitrary will of the

sovereign has to become more complicated, with the result that, paradoxically, the

sovereign’s will has to be exercised in ways that ensure that, in Pettit’s words, ‘to be a free

person [is] … to be a citizen incorporated in the matrix of protection for certain basic

choices that is afforded to each—in theory, afforded equally to each—by the rule of law’.41

The first point to note is that Hobbes is crystal clear that the radical insecurity of the

state of nature resides more in the uncontrolled capacity of others to interfere than in actual

acts of interference. In his discussion of the state of nature in Leviathan, he says:

[D]uring the time men live without a common Power to keep them all in awe, they

are in the same condition which is called Warre: and such a warre, as is of every man,

against every man. For WARRE, consisteth not in Battell onely, or the act of

15

fighting; but in a tract of time, wherein the Will to contend by Battell is sufficiently

known: and therefore the notion of Time, is to be considered in the nature of Warre,

as it is in the nature of Weather. For as the nature of Foule weather, lyeth not in a

showre or two of rain; but in an inclination of many dayes together: So the nature of

War, consisteth not in actual fighting, but in the known disposition thereto, during

all the time there is no assurance to the contrary. All other time is PEACE.42

Commentators on this famous passage usually focus on the point about ‘warre, as is of every

man, against every man’. They thus fail to notice that for Hobbes it is not the interferences

that actual fighting amounts to that typifies the state of nature, but the lack of assurance that

someone who has the capacity to interfere will not interfere. Thus the point of establishing

civil society is to provide that assurance, and the social contract should be entered into in

order to achieve that end.

The second point to note is that the sovereign who is created by the social contract is

an artificial person who is under a duty to serve the interests of those subject to him, and he

does so by ruling through law. In chapter 30 of Leviathan, Hobbes discusses the ‘Office of

the Soveraign’, which he says ‘consisteth in the end, for which he was entrusted with the

Soveraign Power, namely, the procuration of the safety of the people’. The sovereign is ‘obliged

by the law of nature’ to procure this end and Hobbes adds that safety is more than ‘a bare

Preservation’, since it includes ‘all other Contentments of life, which every man by lawful

Industry … shall acquire to himselfe’.43 He continues: ‘To the care of the Soveraign,

belongeth the making of Good Lawes. But what is a good Law? By a Good Law, I mean not

a Just Law: for no Law can be Unjust. … A good Law is that, which is Needfull, for the Good

of the People, and withall Perspicuous’.44 Hobbes then offers the following account of the

function of law in civil society:

16

For the use of Lawes, (which are but Rules Authorised) is not to bind the People

from all Voluntary actions; but to direct and keep them in such a motion, as not to

hurt themselves by their own impetuous desires, rashnesse, or indiscretion; as

Hedges are set, not to stop Travellers, but to keep them in the way. And therefore a

Law that is not Needfull, having not the true End of a Law, is not Good. …

Unnecessary Lawes are not good Lawes; but trapps for Mony …45

The last line expresses a concern that bad laws are vulnerable to capture by powerful

private elites. The first line gives us an image of law as a hedge that is more nuanced than

Berlin’s image of law as a ‘fetter’, or Hobbes’s in The Elements of the Law as a ‘restraint’, that

is, more nuanced than the image of law-as-fetter that both Berlin and Pettit suppose follows

from Hobbes’s definition of the free man. For the image of law-as-hedge suggests that

hedges are public goods that neither impede our motion nor do they impose an ultimate on

our motion. Rather, hedges make mobility possible.

The image thus presupposes that there can be such a thing as a non-instrumental law: a

law that facilitates individual action. It does not do so primarily because it clearly sets out in

advance any prohibition so that one can take the prohibition into account when planning.

Indeed, it need not prohibit anything. Rather, what it does, whether it prohibits or not, is put

in place the conditions that make it possible for individuals to follow through on their own

plans.46

The best modern articulation of the idea of non-instrumentality in law is in Michael

Oakeshott’s somewhat neglected essay, ‘The Rule of Law’, where Oakeshott says that the

‘expression “the rule of law”, taken precisely, stands for a mode of moral association

exclusively in terms of the recognition of the authority of known, noninstrumental rules

(that is, laws) which impose obligations to subscribe to adverbial conditions in the

17

performance of the self-chosen actions of all who fall within their jurisdiction’.47 By this,

Oakeshott seems to mean the conditions that attach to performing actions that are made

possible by, though not dictated by, the law.

Thus: ‘If you wish to drive from Budapest to Vienna, you must do so on the right

hand side of the road’ does not tell you to make that journey, but makes that journey

possible in a way that is otherwise be unavailable to you; ‘If you wish to buy that house you

must follow these formalities in order for the contract to be valid’, does not tell you to buy

the house, though it makes it possible for you to do so; ‘If you wish to interact with other

individuals, do not murder, commit other acts of violence, steal’, does not tell you whether

and otherwise how to interact with them, but it does make possible civilized interaction

between you and others. In all of these cases, the subject is at liberty to decide whether to

drive, etc.

Notice that none of these liberties, whether to bring some state of affairs into being,

or simply to get something done under conditions of security, is even possible in a state of

nature. Hence, the image of law-as-hedge captures the way in which law of a particular form

can be introductive of civic liberty—liberty under an order of public law--that otherwise

could not be had. Moreover, the choices that this kind of law makes possible create the

framework for particular exercises of choice, where to travel to, what legal relationships to

enter into, how to interact with others.

In sum, this kind of law provides a resource that makes choice in general possible

and so also particular exercises of choice. It can thus be said to be constitutive of the liberty

to choose for oneself, rather than the instrument of particular goals.

It is important to see how civic liberty differs from other conceptions of liberty. First,

it is not negative in nature since it is not liberty from the law but liberty introduced by law. It

18

is true that law in making possible the choice could also be said to circumscribe it. But it

would be odd to think of this kind of law as a fetter on the choice, just as it would be odd to

think of the rules that, for example, constitute the game of chess as fettering the choices that

one makes when one plays chess.

Second, civic liberty is not positive in nature. The liberty the law makes possible for

legal subjects provides them with a resource that they may use or not, at their discretion.

Even in the case of the criminal law which enacts proscriptions on certain behaviours that

are harmful to others, thus dictating important terms of social interaction, the terms are best

understood as making it possible for individuals to choose on their own terms how to

interact with others.48

Finally, civic liberty is not a subset of the natural liberty that according to Hobbes

individuals enjoy in the state of nature to do whatever it takes to ensure their own survival.

That is, Republicans and others take the liberty Hobbes ascribes to the subject in civil society

to be the residue of the liberty enjoyed in the state of nature that is left to the individual in so

far as the civil laws do not create obligations for subjects. But that cannot be right. Natural

liberty is equally and fully enjoyed by subjects in civil society and so they are always equally

free in its sense to break the civil law. Their disobedience might result in their liberty being

physically restrained, but at that point it is not the law that constrains them but the prison

walls or their physical bonds.

One has to appreciate these differences to make exegetical sense of Hobbes’s

extensive discussion of liberty in chapter 21 of Leviathan.49 Whilst Hobbes starts the chapter

with the definition of the freeman quoted at the outset of this chapter, he goes on to

describe what he clearly regards as a distinct kind of liberty, ‘the Liberty of Subjects’, which is a

liberty in ‘relation to [the] … Bonds’ that are made up of the ‘Artificiall Chains’ or civil laws,

19

which are issued by the artificial person of the sovereign.50 With perhaps the Republicans of

his day in his sights, Hobbes comments caustically that it would be ‘absurd’ to clamour for

liberty from such laws, if liberty is taken as corporeal liberty, since that liberty is one that

people ‘manifestly enjoy’. That is, to repeat, civil law does not physically obstruct. And it is

equally absurd for subjects to demand the liberty to be their own masters, to demand an

‘exemption’ from the civil laws,51 because that would be to demand a return to the condition

of ‘masterless men’, that is, to the ‘perpetuall war’52 of the state of nature.

It is true that in these passages in chapter 21 there are clear echoes of the law-as-

fetter image that dominates The Elements of the Law, most notably, when Hobbes says the

‘Liberty of a Subject, lyeth therefore only in those things, which, in regulating their actions,

the Soveraign hath praetermitted: such as in the Liberty to buy and, and sell, and otherwise

contract with one another …’53 He also says later in the chapter that ‘other Lyberties…

depend on the Silence of the Law’ since in ‘cases where the Soveraign has prescribed no rule,

there the Subject hath the Liberty to do, or forebeare, according to his own discretion. And

therefore such Liberty is in some places more, and in some lesse; and in some times more, in

other times lesse, according as they that have the Sovereaignty shall think most convenient’.54

But even here the space is what we might think of as ‘discretionary liberty’—the facility of

judgment or choice under conditions of security and stability that is made possible by the

law. It is not, to repeat, natural liberty since that consists in a space limited only by physically

disabling factors.

In sum, for Hobbes the point of individuals consenting to live under the authority of

an all-powerful sovereign is to procure a condition of civic liberty. Civic liberty is a different

kind of liberty from the natural liberty of individuals in a state of nature to do anything they

consider appropriate to ensure their survival. It does not consist in a freedom from physical

20

obstacles, first, because the bonds of the law are not such obstacles.55 Second, it is not even

accurate to understand civic liberty as a liberty from the law, even though Hobbes himself is

tempted at times to say just this, because it is a liberty which we would not and could not

have were it not for the fact that the law introduced it. Rather, law is necessary to create civic

liberty; and as long as that is what the laws of a legal order do, they will create the same

quality of liberty even though the space they make for the exercise of discretion by subjects

will vary greatly across both time and space.

Notice that what I called above discretionary liberty, the judgment by subjects about

whether and how to use their civic liberty, is a direct descendant of the radical or unfettered

discretion of individuals in the state of nature to decide on what actions will best ensure their

survival. It is a descendant because Hobbes assumes the equality of all individuals in the state

of nature to decide on what is best for themselves and, as I will sketch below, carries

forward this assumption into the structure of civil society. But there are salient differences

because subjects in civil society unlike individuals in the state of nature do not have to

exercise their judgment about how to survive, since survival is no longer at stake. Instead,

their judgments will be about how to make their lives go as well as they can on their own

terms, within the framework of civic liberties established by the law. As David Gauthier has

argued, the transition from the state of nature to civil society enables subjects to replace

what we can think of as the natural reasoning appropriate to the state of nature with a form

of public reasoning appropriate to life in a civilized society.56

The quality of civic liberty is thus more important for Hobbes than the quantity; and

that a universal quality is secured, even though quantity is dictated by sovereign will, is

important to seeing why for Hobbes, as I am about to explain, sovereign rule is not arbitrary

in the way his critics allege. This explanation serves to show why the transition to civil

21

society makes possible a kind of public reason. Moreover, in seeing this, we can also

appreciate why Hobbes’s legal theory, contrary to his reputation as someone who holds an

austerely positivist view of law as the commands backed by sanctions of a legally unlimited

sovereign, is not part of the legal positivist tradition.

THE QUALITY OF CIVIC LIBERTY

The first respect in which sovereign rule is non-arbitrary (or non-dominating) from the

perspective of subjects is that for the sovereign as an artificial person to will he has to will

through law. The conditions of civic liberty have to be created by, and can only be changed

by, public, prospective legislation, which in words taken from Friedrich Hayek’s well-known

formulation of the ideal of the rule of law, makes ‘it possible to foresee with fair certainty

how the authority will use its coercive powers in given circumstances’.57 By itself, this

requirement goes a long way to ensuring non-arbitrary rule in one of two important senses—

that of rule by law. Neither the sovereign nor his agents are entitled to use coercion against

legal subjects unless they can show a prior legal warrant.

However, whilst this criterion for a valid exercise of sovereign authority is necessary

for the rule of law to be non-arbitrary in that it requires prior legal authorization for valid

exercise of such power, it cannot be sufficient. For example, the officials might be

authorized to act arbitrarily, either in that they are given what lawyers call an ‘unfettered

discretion’, a discretion to do as they please, or they are explicitly authorized to perform

substantively arbitrary acts, that is, acts that perpetuate or create relationships of domination.

Thus one eminent philosopher of law and legal positivist, Joseph Raz, has suggested

that the rule of law ‘is essentially a negative value’: the law ‘inevitably creates a danger of

22

arbitrary power’, so that the rule of law is ‘designed to minimize the danger created by the

law itself’.58 Raz, as I will argue below, is wrong to suppose that the rule of law is essentially a

negative value, one which does not ‘cause good except through avoiding evil and the evil

which is avoided is evil which could only have been caused by the law itself’.59 However, his

suggestion about negative value does go some way to capturing one aspect of the rule of law.

As I will now go on to show, the other, more positive or constitutive aspect is well captured

by Hobbes. And once that aspect is revealed, we have not only a better understanding of the

‘negative’ aspect, but also, and despite the fact that Hobbes is the main foil for Republicans,

a grip on the way in which law connects to a conception of freedom as non-domination in a

constitutive fashion. It does so by meeting a second criterion, that of legality.

Raz’s suggestion trades on the idea that the highly centralized power of modern

governments, which includes the monopoly on the legitimate use of coercion, is a kind of

power that is legally constituted. Hence, law creates the kind of governmental power that

preoccupies political philosophers who take as their principal concern the limits on state

action, and who find in the rule of law one way of enforcing such limits.

But whilst it is true that law does organize power in a way that makes it an effective

instrument of those who wield power, it does not merely organize power, but also endows it

with authority. Those who wield legal power claim more than the de facto ability to force

compliance with their directives; they claim, de iure, the right to require compliance from

those subject to their authority. It is for this reason that Hobbes in his definition of law does

not refer to the coercive power of the sovereign, but to his right to obedience: law is the

command not ‘of any man to any man: but only of him, whose Command is addressed to

one formerly obliged to obey him’.60 Of course, the claim to authority, and moreover to

legitimate authority, might serve to make legal power seem even more dangerous, which is

23

why legal positivists such as Raz are anxious to debunk any claim that law has some intrinsic

legitimacy. But that those who wield legal power claim authority for their directives entails

that they lose authority, and with that loss fail to exercise power, when they do not act

according to law.

However, as suggested above, the rule-by-law sense of non-arbitrary rule permits

rules that introduce what we can think of as substantive arbitrariness into a legal order, for

example, rules that require that one group of legal subjects be treated as less than equal.

Hence, the requirement that the conditions of civic liberty be set by publicly enacted rules of

sufficiently determinate content is necessary but not sufficient for there to be freedom under

a public order of law. The proviso I added to the claim that for Hobbes the bonds of the

law create civil liberty--as long as that is what the laws do--is important because the history of

legal orders is littered with examples of laws that far from constituting civic liberty have

either undermined or destroyed it.

Most Hobbes scholars do not think that Hobbes made room for such a proviso in

his legal theory. They take as evidence, amongst other things, his remarks to the effect that

the sovereign is accountable only to God for his infractions of the laws of nature.61 But these

scholars, including the Republicans amongst them, neglect Hobbes’s extensive discussion in

chapter 26 of Leviathan of the interaction within civil society of the laws of nature with

enacted law, an interaction over which subordinate judges preside. Moreover, this interaction

shows why for Hobbes to use law to undermine civic liberty is an abuse of legal form that

will not only create tensions internal to legal order, but bring into question the relationship

of authority between sovereign and subject that has to be maintained for a legal order to

persist.

24

As I have argued elsewhere,62 the sovereign as ultimate judge is constrained by the

laws of nature, not because he owes duties to his subjects, and despite the fact that Hobbes

rejects arguments for the separation of powers. Rather, the constraints come about because

of the duty his subordinate judges owe to him to interpret his enacted law in the light of

their understanding of the laws of nature. The sovereign as first and ultimate judge can either

preclude or override such interpretations. However, that does not make the constraints cease

to be such; it simply makes them overridable by very explicit words. And if the sovereign

should choose to override the constraints, he risks bringing about the limit case in which the

subject is entitled to treat him as no longer maintaining the essential relationship between

protection and obedience, that is, as no longer a sovereign.

Oakeshott, perhaps alone among the major Hobbes scholars of the last century, was

sensitive to this aspect of Hobbes’s legal theory. Not only is Hobbes the primary inspiration

for his own essay on the rule of law, but he also saw that in Hobbes’s legal theory the laws of

nature give us the content of legal right, or ius, to which enacted law, or lex, must aspire to

conform.63 The proviso is entailed in that kind of legal theory. It amounts to what I call the

‘legality proviso’--that it is not sufficient for an enactment to comply with public criteria of

validity to count as law. The content of the enacted law must also be interpretable by judges

in light of the laws of nature. And when the legality proviso is met, one has in place more

than rule by law, government by lex, since one has the rule of law, government in accordance

with principles of legality or ius.

Only then, only that is, when there is a public order of law, meaning of particular

laws that are interpretable in way that meets the legality proviso, will the laws that make up

the order be introductive of civic liberty. Such interpretations condition the content of the

laws as they apply to particular subjects, and thus affect the relationship between the subject

25

and the sovereign on the basis of the laws of nature, the set of which Hobbes calls ‘the true

and onely Morall Philosophy’.64

Among the most important of Hobbes’s laws for understanding the content of ius

are the laws that require impartial and equitable judgment and proportionality in punishment.

In spirit, they overlap considerably with the list of the desiderata of the rule of law that Lon

L. Fuller argued made up an ‘inner morality’ of law, with the major difference being that for

Hobbes a principle of equality is central to his account of the laws of nature.65

The legality proviso thus indicates that there is more to the rule of law than Hayek

conveyed in his famous formulation in The Road to Serfdom:

Nothing distinguishes more clearly conditions in a free country from those in a

country under arbitrary government than the observance in the former of the great

principle known as the Rule of Law. Stripped of all of its technicalities, this means

that government in all of its actions is bound by rules fixed and announced

beforehand—rules which make it possible to foresee with fair certainty how the

authority will use its coercive powers in given circumstances and to plan one’s

individual affairs on the basis of this knowledge.66

For the formulation ‘rules which make it possible to foresee…’ implies that all that matters is

that we have as much certainty as possible about what obstacles the laws might place in our

way, so that we can avoid being surprised by them. Hence, the rule of law gets announced

with great fanfare in the first line, but is reduced to the rule of rules with determinate

content in the second.67

However, in other work Hayek referred to a ‘nomocratic’ or ‘law-governed’

conception of a free society, which he contrasted with a ‘telocratic’ or ‘purpose-governed’

conception.68 He credited Oakshott with this distinction and said that the ‘great importance’

26

of the ‘abstract order’ of a nomocracy is that it ‘extends the possibility of peaceful co-

existence of men for their mutual benefit beyond the small group whose members have

concrete common purposes, or were subject to a common superior, and that it thus made

the appearance of the Great or Open Society possible’.69 And it was clearly the nomocratic

conception that Hayek had in mind when in The Road to Serfdom he drew a distinction

between the rule of law as the rule of general and formal rules and rule by substantive rules

in terms of ‘providing signposts and commanding people which road to take’.70 For the

image of law-as-signpost seeks to convey what Hobbes had in mind in giving us the image of

law-as-hedge.

The image of law-as-fetter works best in the position of those who think that the

only important sense of liberty is liberty as non-frustration. For them law is best conceived

as no more than a determinate constraint on negative liberty which will be legitimate in so

far as it constrains our liberty as little possible, just enough to secure peaceful social

interaction, and in so far as the constraint is as determinate as possible, so that we can plan

around it. The loss in liberty will be justifiable or not depending on whether the value of the

goal of which the law is the instrument compensates sufficiently for the disvalue in the loss

of liberty. Pettit and Berlin himself71 considered that Bentham was a central figure in this

tradition of political thought. They are right to do so. But it is important to see that

Bentham, and those who follow after him in his legal positivist understanding of law, either

reject the legality proviso or have considerable difficulty integrating it into their theories.

Bentham rejected the legality proviso for at least two reasons. First, legal order has

in his view no intrinsic legitimacy. Law is no more than a mechanism for transmitting the

commands of the powerful to legal subjects and whether it is legitimate or not will depend

both on its content and its provenance. Because Bentham thought that good content, i.e. a

27

correct calculation of overall utility, was most likely to be achieved by having a

democratically elected assembly decide on the content of the law, provenance and content

were in his view linked. Second, and relatedly, because the legality proviso requires judges to

seek to interpret enacted law in light of the principles that make up the legality proviso,

Bentham thought that it gives to an unelected and conservative elite a resource to second

guess those with legitimate authority to decide on overall utility.

It is interesting that this kind of legal positivism gets support from some

contemporary Republicans.72 For them, it is a sufficient condition for law to be legitimate,

that is, non-dominating, that it has been enacted by a properly constituted democratic

legislature. They thus reject arguments that require that the content of the law be determined

in accordance with any morally-infused interpretative test such as the legality proviso, as

interpreted by a staff of judges independent of the executive, because they claim that such

arguments give a license to the judges to second guess democracy. The point of law, on their

view, is to transmit as effectively as possible a content that has been determined outside of

the legal order, which means that its legitimacy is wholly derivative, that is, dependent on

whether or not it has the right content.

Put differently, and somewhat paradoxically, law has to be content-independent—to

have a content that can be determined independently of any moral considerations and

arguments--in order that it can do the job of transmitting the content that moral tests

without the legal order have determined should be so transmitted.73 All the moral action,

then, takes place before the enactment of the statute and legitimacy is content-dependent,

dependent on the right content having been determined in the first step.

For Republicans of the sort just described, right content is whatever is determined to

be right by majority legislative vote.. For other Republicans, notably Pettit, not only does the

28

law have to have the right democratic provenance, but it must also be subject to judicial

review for compliance with the rule of law and with an entrenched bill of rights. And, as I

already indicated, Pettit does not stop there. Because for him ultimately a law is non-

dominating only if it tracks the subject’s interests on his or her own conception of interest,

as many opportunities must be given to the subject as possible to edit or contest the law.74

As one political theorist has pointed out, the profusion of checks and balances in this picture

of the good polity amounts to a ‘fulsome embrace of institutional sclerosis’ that will likely

paralyze any attempt to enact and implement the kinds of legislative programs necessary to

do away with social domination.75

Hobbes, we should note, said that his main aim in Leviathan was to find a way to pass

‘unwounded’ between those ‘that contend on one side for too great Liberty, and on the

other side for too much Authority’.76 In his view, the Republicans of his day embraced the

first horn of this dilemma, whilst the seditious clergy--the proponents of divine right--

embraced the second. We can already see the temptation in some Republicans to follow their

predecessors in Pettit’s idea of endless contestation--that one may deny a law authority, no

matter the basis for its claim to authority, simply because one disagrees with its content. In

others, however, there is a tendency to grant a right to democratic legislatures comparable to

the divine right that was once accorded to kings.77 Republicans thus divide into two camps,

an anarchist one and a parliamentary absolutist one, each embracing one horn of the

dilemma Hobbes believed a viable political theory in an age of pluralism has to resolve.

Hobbes’s resolution of this dilemma requires that there be a moment of decision or

institutional closure on any contested political issue. The moment comes when, at least for

the time being, subjects accept not only that the content of the law is as those charged with

ultimate authority to interpret it say, but also that they are under an obligation to obey it

29

despite their strong disagreement with its content. As I have argued, that the law must be

interpretable in light of the laws of nature is a significant constraint on the content of the law,

at the same time as it is a basis for subjects to accept that they are under an obligation to

obey the law. Moreover, that basis is such because the constraint serves an ideal of non-

domination.

Hobbes’s ideal is, however, for good reason less exacting an ideal than that adopted

by the anarchistic strain within Republicanism. As Lars Vinx has pointed out, it is plausible

to infer from Hobbes’s arguments in Leviathan a fear ‘that the pursuit of a thick and

demanding ideal of non-domination that requires endless contestability would turn out to be

incompatible with the existence of well-functioning political institutions capable of securing

public order and social co-ordination’.78 It is also, however, more exacting, at least at the low

altitude of institutional requirements, than that presupposed by the parliamentary absolutist

camp in Republicanism, because the legality proviso requires that any enactment be

interpretable in light of the laws of nature. If the enactment is so interpretable, then the

subject has reason to comply with it, even if he or she disagrees with its content. That reason

is based on the fact that the law is legal, that is, it meets the requirements of the rule of law

or legality.

That the law has a democratic provenance is another, perhaps stronger reason for

compliance. There is at the least an elective affinity between the two kinds of reasons,

democracy and the rule of law, since they both take the point of legal order to be to

construct a society in which individuals may interact with each other in conditions of

security and stability that enable each to live in accordance with his or her sense of the good

life. It might even be correct to argue that freedom under a public order of law cannot be

secured in the absence of democratic controls on government.79 For example, an order that

30

was put in place by a benevolent despot would remain in place only if the despot so willed,

thus making the freedom enjoyed by legal subjects under that order dependent on the

despot’s continued benevolence, which is anathema to a conception of freedom as non-

domination. In addition, one can argue that questions about the quantity of civic liberty are

best worked out in the forum of democratic politics, since that will increase the chances that

the answers will track the interests of subjects as they themselves understand their interests.

Indeed, Hobbes’s own hostility to democracy has less to do with the spirit of his

account of sovereignty than with his historically contingent worry that the political

factionalism of civil war can be ignited by the open political contests of democratic politics.

If one abstracts from that worry, democracy will seem, as it does to many Republicans, as

the natural companion to the requirement that the sovereign rule by law and in accordance

with the rule of law. After all, the major political advance of Leviathan resides in the idea that

the authority of the sovereign is the authority not of a natural person, but of the artificial

person of the state who speaks to subjects through law, that is, through general, public laws

that are interpretable in light of the laws of nature. The great bargain that individuals make in

the state of nature is to swop their subjection to the potential for uncontrolled interference

by any other individual for the controls inherent in legal government.

At times Hobbes talks as though the swop is beneficial only because it is better to be

subject to the whims of a single natural individual than to the whims of everyone, notably,

when he says that one might object ‘that the Condition of Subjects is very miserable; as

being obnoxious to the lusts, and other irregular passions of him, or them that have so

unlimited a Power in their hands’. 80 However, his answer to the objection is an implicit

rejection of the terms in which it is stated. It is that no matter the character of a government,

democratic or monarchical, subjection to it has to be better than the awfulness of the state

31

of nature—‘the dissolute condition of masterlesse men’—not because there is now one

natural master, but because the master is a sovereign who governs by law with the coercive

power to enforce the law centralized in his hands.81

Hobbes’s inquiry into the character of rule by the single artificial person of the state

goes a long way to showing why such rule should be considered legitimate by those subject

to it because it will be non-dominating. He is not disabled in doing so by the fact that on his

view of freedom only actual interferences are normatively relevant. That freedom as non-

frustration is so precarious in the state of nature provides everyone with a reason to exit that

state, but the cure for that precariousness is not premised on freedom as non-frustration.

Rather, it is premised on securing equal civic liberty under an order of public law. Moreover,

whilst the particular laws that make up this order will be fetters on negative liberty in Berlin’s

sense, they are incapable of fettering natural liberty in Hobbes’s sense, and can at most make

it more probable through their sanctioning mechanisms that subjects who do not understand

why it is rational to obey the law because of its intrinsic legitimacy will choose to obey out of

fear.

However, subjects who understand why it is rational to obey the law because of its

intrinsic legitimacy have it because they grasp that a public order of law is introductive of

civic liberty, and so cannot be counted as an interference with that kind of liberty. As

Hobbes says, to clamour for freedom from such laws is to make at least three mistakes: first,

a category mistake in that one is demanding natural liberty when in issue is civic liberty;

second, a logical mistake since one in fact has natural liberty in a civil society; third, a moral

and rational mistake, since the state one is clamouring for is one where the only liberty one

has is natural liberty, but that is a not worth having because one is in ‘the dissolute condition

of masterlesse men’.82

32

The contours of such liberty, what it takes to ensure the quality of civic liberty, can,

then, be worked out apart from the design of the democratic political order.83 And it is best

that the two tasks are not muddled, or worse collapsed as happens in the case of the

absolutist strain within Republicanism or the most libertarian strains within liberalism. In the

former case, the rule of law is reduced to the rule by law of the political elite or alliance of

elites that happens to command a majority in the legislature. In the latter, democracy is

reduced to the rule of law, since democracy is advocated only to the extent that it seems the

best, more accurately, the least bad, means of ensuring that the rule of law is secured, where

by the rule of law is meant not only that a certain quality of liberty is secured, but the

greatest possible quantity consistent with maintaining order and stability.

CONCLUSION

We saw at the outset that Berlin set great store on the ability to ‘realize the relative validity of

one’s convictions’ at the same time as being ready to ‘stand for them unflinchingly’ because

that ability ‘is what distinguishes a civilized man from a barbarian’.84 This somewhat

paradoxical claim might seem some fifty years on uncomfortably paired with a distinction

between civilized men and barbarians.85 But the ‘tragedy of liberty’, the topic of this

collection of essays, has plausibly to do with our sense these days of the fragility and

contingency of a particular form of society that makes possible what Hobbes thought of as

civic liberty.

As I have argued, the conception of liberty at stake here is not a residue of the liberty

of the state of nature, but is freedom under a public order of law. It is in large part produced

by the particular enactments of the sovereign, but these have to be part of the public order, a

33

requirement that imposes the discipline of legality on the enactments. In such an order, the

individual has to understand that his or her own convictions are relative in the sense that the

law supplies what Hobbes called ‘the publique Conscience, by which [the subject] … hath

already undertaken to be guided’.86 That is, individuals must subordinate or relativize their

sense of right and wrong to the public sense, at least in so far as they conform in their

actions to that sense, even whilst they maintain their own convictions. But that

subordination is subject to the limit case, in which the natural individuals who people the

office of sovereignty step beyond the limits of their authority and those subject to the law

are entitled to conclude that the law has lost its authority because it is no longer doing the

job of constituting their equal freedom.

The Republican revival is of immense value in an understanding of these issues in

that it focuses our attention on the major mark of a civilized society as one in which

individual interaction is untainted by domination. But, or so I have argued, they should see

that perhaps their most helpful ally in trying to understand the design of such a society is the

figure they usually take as their enemy number one, Thomas Hobbes and the tradition of

modern thought about the discipline of legality which he founded.87

Hobbes is not the only figure in the history of political thought who can prove

helpful in this regard, in part because a suspicion of or even hostility to democratic controls

creates an incentive to inquire more deeply into the controls of legality. Consider that Hayek

is one of the figures in the liberal tradition most closely associated with the political ideology

of libertarianism and thus with hostility to the welfare state, most famously expressed in his

The Road to Serfdom.88

However, in Republicanism, Pettit is willing to recognize, albeit in footnotes, that even

Hayek’s conception of freedom under a system of public laws might not look at the low

34

altitude of institutional requirements that different from freedom as non-domination.89 Here

I have argued that this coincidence comes about not because liberals are tempted to adopt

institutional forms that are premised on a conception of freedom as non-domination despite

the fact that they espouse some version of negative liberty that cannot support such forms.

Rather, they adopt those forms precisely because on closer inspection it appears that they

share the basic idea behind the Republican ideal of non-domination--that above all it is

important that individuals have secured for them the ability to exercise what I called above

their discretionary liberty, their freedom to decide for themselves how to live independently

of others’s arbitrary interferences, both actual and potential.

Thus, Hayek in his later work placed his own conception of the rule of law firmly

within the tradition of thought embraced by Republicans, when he claimed Cicero as the

‘main authority for modern liberalism’ because he had provided ‘many of the most effective

formulations of freedom under law’:

To him is due the conception of general rules or leges legum, which govern legislation,

the conception that we obey the law in order to be free, and the conception that the

judge ought to be merely the mouth through which the law speaks. No other author

shows more clearly that during the classical period of Roman law it was fully

understood that there is no conflict between law and freedom and that freedom is

dependent upon certain attributes of the law, its generality and certainty, and the

restrictions it places on the discretion of authority.90

Moreover, Hayek relied on exactly the contrast between slavery and freedom so

central to Republican thought. His The Constitution of Liberty is presented as an exercise in the

recovery of the ‘original meaning’ of freedom.

Man, or at least European man, enters history divided into free and unfree; and this

35

distinction had a very definite meaning. The freedom of the free may have differed

widely, but only in the degree of independence which the slave did not possess at all.

It meant always the possibility of a person’s acting according to his own decisions

and plans, in contrast to the position of one who was irrevocably subject to the will

of another, who by arbitrary decision could coerce him to act or not to act in specific

ways. The time-honored phrase by which this freedom has often been described is

therefore ‘independence of the arbitrary will of another’. 91

Here Hayek emphasized, more important than the fact that this was the original meaning of

freedom, is that it describes a state which is ‘desirable for reasons different from those that

which make us desire other things called “freedom”’, for example, ‘freedoms from and

freedoms to’.92

Finally, Hayek is clear that whilst there is an important question about ‘how many

courses of action are open to a person’’, this is a ‘different question’ from the one that

should be the primary focus of political and legal philosophy. This is the question of

how far in acting an individual from that of how far in acting he can follow his own

plans and intentions, to what extent the pattern of his conduct is of his own design,

directed towards ends for which he has been persistently striving rather than towards

necessities created by others in order to make him do what they want. Whether he is

free or not does not depend on the range of choice but on whether he can expect to

shape his course of action in accordance with his present intentions, or whether

somebody else has power so to manipulate the conditions as to make him act

according to that person’s will rather than his own. Freedom thus presupposes that

the individual has some assured private sphere, that there is some set of

circumstances in his environment with which others cannot interfere.

36

For Hayek, then, as we saw for Hobbes, the kind of liberty produced by a public

order of law has the following characteristics:

(a) it is different in kind from negative and positive liberty;

(b) it is the kind that should be the primary focus of political and legal philosophy

because of the desirability of the social and political condition in which it is

secured;

(c) its value depends not on its extent or quantity but on its quality;

(d) that quality is affected negatively by the capacity for arbitrary interference as well

as by actual arbitrary interferences.

Once that quality of civic or legal liberty is attained, there are further tasks for political

philosophy: for example, whether and to what extent there should be a welfare state.

It is significant that Pettit finds himself in Republicanism having to distinguish himself

from Hayek, considered one of the leading proponents of negative-liberty liberalism of the

twentieth century, by pointing out that his own version of freedom as non-domination is as

much concerned with the potential for social arbitrariness—for example, domination in the

workplace and the family--as it is with the potential for political arbitrariness.93 However, it is

not that clear that Hayek was unconcerned with social domination. Rather, he was worried

about the potential for domination in giving an extensive role to the state to use law to

combat the kinds of social domination to which Pettit points. That is, attempts at extensive

state regulation necessarily multiply the amount of state interference in our lives, and thus

the occasions when we might find ourselves subject to the coercive and arbitrary judgment

of some state official. That concern becomes heightened when we notice that the main

influence in complex legislative regimes designed to combat social domination is quite likely

37

to be that of powerful elites, which might be what Hobbes had in mind when he said. As we

saw above, that bad laws are but traps for money.

Put differently, the use of law as an instrument to combat social domination carries

inherent risks of creating new forms of social domination. And in this regard it is worth

noting that Hayek shifted from a position totally opposed to the welfare state at the time of

The Road to Serfdom to one that recognized that the problem was not about state interference

as such, but about whether state interference can be made subject to the discipline of legality.

That question remains as pressing today as we consider contemporary manifestations of

threats to liberty that highlight the fragility and contingency of a particular form of society

that makes possible what Hobbes thought of as civic liberty. And the lesson of my chapter is

that there is much to be learned from those thinkers in the Western tradition who, perhaps

because of their suspicion of, even hostility to democracy, focused their attention on the way

in which legality might help to secure freedom as non-domination.

1 Professor of Law and Philosophy, Toronto. For discussion of this paper, I thank the

participants in the ‘Tragedy of Liberty’ conference at the Central European as well as the

audience at a Department of Philosophy Workshop at the University of Vienna. My greatest

thanks are due to Ariel Zylberman, whose comments on a revised draft of that paper led to

rather radical changes.

38

2 Isaiah Berlin, ‘Two Concepts of Liberty’, in Berlin, Four Essays on Liberty (Oxford: Oxford

University Press, 1969) 118.

3 Ibid, 123, note 2.

4 Berlin, ‘Two Concepts of Liberty’, 122, note 2.

5 I believe the quote to come from Joseph Schumpeter.

6 Berlin, ‘Two Concepts of Liberty’, 172.

7 FA Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994).

8 Ibid, 80.

9 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University

Press, 1999).

10 Ibid, 50.

11 Ibid, 31-5.

12 See Frank Lovett and Philip Pettit, ‘Neorepublicanism: A Normative and Institutional

Research Program’ (2009) 12 American Review of Political Science 11, 16.

13 Ibid.

14 Berlin, ‘Two Concepts of Liberty’, 129.

15 For the idea of ‘alien control’, see Philip Pettit, ‘Republican Freedoms: Three Axioms,

Four Theorems’ in Cécile Laborde and John Maynor, eds, Republicanism and Political Theory

(Oxford: Blackwell, 2008) 102.

16 Pettit, Republicanism, 292-97.

17 Philip Pettit, ‘The Instability of Freedom as Noninterference: The Case of Isaiah Berlin’,

(2011) 121 Ethics 693. In the article, terms such as non-frustration are not hyphenated, but I

will use hyphens for the sake of uniformity.

39

18 Berlin, Four Essays on Liberty, xlviii and for the implicit break, see ‘Two Concepts of

Liberty’, 127, as set out by Pettit, ‘Instability’, 698.

19 Ibid.

20 Pettit, ‘Instability’, 704-5.

21 Ibid, 706.

22 Ibid, 709.

23 Ibid, 712, quoting from Berlin, ‘Two Concepts of Liberty’.

24 Pettit, ‘Instability’, 712.

25 Berlin, ‘Two Concepts of Liberty’, 134.

26 Ibid.

27 Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge

University Press, forthcoming).

28 For a distinguished example of this kind of criticism, see Charles Larmore, ‘The Meanings

of Political Freedom’ in Larmore, The Autonomy of Morality (Cambridge: Cambridge

University Press, 2008) 168.

29 I owe this term to Ian Shapiro, ‘On Non-Domination’, (2012) 62 University of Toronto Law

Journal 293.

30 Note XX above.

31 Pettit, Republicanism, 41-5, and Philip Pettit, ‘Liberty and Leviathan’, (2005) 4 Politics,

Philosophy, & Economics 131; Quentin Skinner, Hobbes and Republican Liberty (Cambridge:

Cambridge University Press, 2008).

32 Hobbes, Leviathan, 128. For the full quote, see the text below.

33 Pettit, ‘Instability’, 696.

40

34 Ibid, 711-12.

35 Skinner, Hobbes and Republican Liberty, 160-61.

36 Ibid, 151-77. Skinner says of the first sense that it amounts to the ‘most outrageous

moment of effrontery in the whole of Leviathan’; ibid, 151.

37 Thomas Hobbes, The Elements of Law Natural and Politic (Oxford: Oxford University Press,

1994), in De Corpore Politico, 173-4.

38 Ibid.

39 See Pettit, ‘Liberty and Leviathan’,

40 Thomas Hobbes, Leviathan (Cambridge: Cambridge University Press, 1997, Richard Tuck,

ed.), 146. See Skinner, Hobbes and Republican Liberty, chapter 5.

41 Note XX above.

42 Hobbes, Leviathan, 88-9.

43 Ibid, 231.

44 Ibid, 239.

45 Ibid, 239-40.

46 See Scott Shapiro, Legality (Cambridge, Mass.: Harvard University Press, 2011).

47 Michael Oakeshott, ‘The Rule of Law’ in Oakeshott, On History and Other Essays

(Indianapolis: Liberty Fund, 1999) 129, 148.

48 In a draft companion paper, ‘Liberty and Legal Form’, I argue that this kind of law is the

basic legal form, underpinning both kinds of law identified by HLA Hart--duty-imposing

and power-conferring rules. That is, both these kinds of law, albeit in different ways,

instantiate the legal form that introduces a particular kind of liberty.

41

49 For a compelling critique of Pettit’s analysis of Hobbes on liberty as well as an argument in

support of the claim about exegesis, see Lars Vinx, ‘Hobbes on Civic Liberty and the Rule of

Law’, in David Dyzenhaus and Thomas Poole, eds., Hobbes and the Law (Cambridge:

Cambridge University Press, 2012) 145.

50 Hobbes, Leviathan, 147.

51 Ibid.

52 Ibid, 149.

53 Ibid, 148.

54 Ibid, 152.

55 Hobbes says the bonds of the law are ‘in their own nature but weak’ though he adds that

they ‘may neverthelesse be made to hold, by the danger, though not by the difficulty of

breaking them’. Ibid, 147.

56 David Gauthier, ‘Thomas Hobbes and the Contractarian Theory of Law’ (1990) 16

Canadian Journal of Philosophy 5.

57 Hayek, The Road to Serfdom, 80.

58 Joseph Raz, ‘The Rule of Law and its Virtue’ in Raz, The Authority of Law: Essays on Law and

Morality (Oxford: Clarendon Press, 1983) 210, 224.

59 Ibid.

60 Hobbes, Leviathan, 183. Raz has extensively analysed this feature of law, but his analysis is

constrained by his positivistic commitments—see especially, Joseph Raz, ‘Authority, Law,

and Morality’ in Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics

(Oxford: Oxford University Press, 1994) 194; and for incisive critique, see Stephen Darwall,

‘Authority and Reasons: Exclusionary and Second Personal’ (2010) 120 Ethics 257 and

42

‘Authority and Second Personal Reasons for Acting’, in David Sobel and Steven Wall, eds.,

Reasons for Action (Cambridge: Cambridge University Press, 2009) 135.

61 For example, immediately after Hobbes’s claim that the sovereign is bound by the law of

nature to make good law; Leviathan, 231.

62 Most recently, in ‘Hobbes on the Authority of Law’, in Dyzenhaus and Poole, Hobbes and

the Law, 186.

63 As he put it, the laws of nature ‘should not be seen as independent principles which, if

followed by legislators, would endow their laws with a quality of “justice”; they are no more

than an analytic break down of the intrinsic character of law, … the jus inherent in genuine

law which distinguishes it from a command addressed to an assignable agent or a managerial

instruction concerned with the promotion of interests’; Oakeshott, ‘The Rule of Law’, 173.

64 Hobbes, Leviathan, 110.

65 Fuller discussed eight such desiderata: generality, promulgation, non-retroactivity, clarity,

non-contradiction, possibility of compliance, constancy through time, and, the one which he

took to be the most complex, congruence between official action and declared rule. See Lon

L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1969, revised

edition), chapter 2. He argued that a legal system that fails completely to meet one of these,

or fails substantially to meet several, would not be a legal system. It would not qualify as

government under law—as government subject to the rule of law.

66 Ibid, 80.

67 Hayek thus made himself an easier target for Raz’s critique in ‘The Rule of Law and Its

Virtue’, an essay in which Hayek and Fuller are Raz’s main foils.

43

68 FA Hayek, ‘The Principles of a Liberal Social Order’, in Hayek, Studies in Philosophy, Politics

and Economics (New York: Simon and Schuster, 1969), 160, at 163.

69 Ibid. His emphasis. Note that the book is dedicated to Karl Popper. In a review article of a

collection of Popper’s essays, Katrina Forrester traces Popper’s intellectual journey from a

position of opposition to communism but not to social democracy to an unrelenting

libertarianism—‘Toqueville anticipated me’, (2012) 34 London Review of Books, 26 April 2012,

42.

70 Hayek, The Road to Serfdom, 82.

71 See note XX above.

72 See Richard Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9

International Journal of Constitutional Law 86. See further, Samantha Besson and José Luis Martí,

“Law and Republicanism: Mapping the Issues” in Besson and Martí, eds., Legal Republicanism

(Oxford: Oxford University Press, 2009), 3, at 32-33: ‘legal republicanism ought to

encompass a positivist theory of law because it cannot rely on the existence of a natural, pre-

political validity’.

73 See Raz, ‘Authority, Law, and Morality’, 202-4, for an explanation of why a positivistic

account of authority requires the notion of content-independent reasons.

74 Pettit is more ambiguous on this point than I allow in the text, especially in On the People’s

Terms: A Republican Theory and Model of Democracy. He seems undecided whether interests can

be determined pre-institutionally in accordance with some impartial, third personal test, or

whether they have to be determined institutionally, in the course of individual interaction,

that is, second–personally. Perhaps it is his view is that the interest in not being dominated

is determined on the first method, and everything else falls out of the second. As Ariel

44

Zylberman has pointed out to me, there is a problem for consequentialist Republicans like

Pettit if what ultimately matters is a social condition of non-domination. For it is not then

immediately clear that the rule of law is a necessary means to attain the desired Republican

outcome. In my view, which I will not defend here, Hobbes’s version of non-domination

whilst perhaps also consequentialist in that non-domination is the goal of civil order, is not

vulnerable to the same form of critique.

75 Shapiro, ‘On Non-Domination’, 331.

76 Hobbes, Leviathan, Dedication, 3.

77 I discuss these ideas further in “How Hobbes Met The “Hobbes Challenge”’, (2009) 72

Modern Law Review 488.

78 Vinx, ‘’Hobbes on Civic Liberty and the Rule of Law’, 163-4.

79 This is the argument of much of Pettit’s new book, On the People’s Terms: A Republican

Theory and Model of Democracy.

80 Hobbes, Leviathan, 128.

81 Ibid, 128.

82 Ibid, 147-8.

83 In fact, this is precisely how Pettit proceeds in On the People’s Terms: A Republican Theory and

Model of Democracy, as the requirements of social justice are set out in chapter two, and the

analysis of political legitimacy begins in chapter 3.

84 See note XX above.

85 Here we should note Steven Pinker’s intriguing argument in The Better Angels of Our Nature:

Why Violence has Declined (New York: Viking, 2011), in which he takes Hobbes along with

Kant to be the main philosophical influence in the civilizing process that leads to the decline

45

of violence that is the theme of his book. On Pinker’s view, Hobbes explains more the

civilizing process within states, whilst Kant explains more the process between states.

86 Hobbes, Leviathan, 223.

87 Perhaps the best exploration of these issues in the twentieth century is Hans Kelsen, Vom

Wesen und Wert der Demokratie (Aalen: Scientia Verlag, 1981).

88 FA Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994).

89 Pettit, Republicanism, note 9 at 50, note 2 at 89.

90 F A Hayek, The Constitution of Liberty (London: Routledge & Kegan Paul, 1960), 166-7.

91 Ibid, 12.

92 Ibid.

93 Pettit, Republicanism, 89-90.