This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014.
Between those who advocate “too great liberty” and those who contend for “too much authority,” Thomas Hobbes found it difficult “to pass between the points of both unwounded.” It does not appear that he cleared the gauntlet successfully. One of the many curiosities in Hobbes’s work is its provocation of two diametrically opposed, and seemingly inconsistent, criticisms. When Leviathan was first published some 350 years ago, Hobbes’s very name became an epithet in polite circles, evoking the horrors of atheism, libertinism, and worst of all, defiance to established authority. Today, the same work that Hobbes’s contemporaries denounced as a “Rebel’s Catechism” is widely viewed as an unequivocal and misguided defense of an authoritarian and absolutist government. Hobbes’s descriptions of the need for a powerful sovereign are many and memorable enough to have eclipsed, over time, his endorsements of a few specific rights to resist the sovereign. But Hobbes’s contemporaries did not overlook the subversive strands of his work, and neither should we. In particular, there is much to be learned from the juxtaposition of Hobbes’s account of law—a command made with authority, to one obliged to obey—and his account of punishment—an act of violence that the target has a right to resist. This juxtaposition illuminates some recurring jurisprudential questions about the relationship of law to coercion, and the possibility of strictly descriptive, nonevaluative legal theory.
Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. I shall argue that the fault lies in our categories, and not in Hobbes. He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals.
The Article is organized around three questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first of these questions has been tackled by Hobbes scholars, of course, but Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement.