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Laws Living and Armed: The Legal and Political Theory of Thomas Hobbes


'Laws Living and Armed' corrects a longstanding misreading of Hobbes’s theory of law and its relationship to his political theory. The aim of this dissertation, in addition to offering the first comprehensive account of a Hobbesian theory of positive law, is to demonstrate that Hobbes’s arguments about law make at least three significant and previously overlooked contributions to political theory. First, I show that Hobbes’s theory of law is not one of unilateral command, but rather depends on (a) the relationship between ruler and ruled, (b) the system of administration through which the sovereign rules, and (c) the goals of the laws. Traditionally Hobbes is portrayed as promoting a simplistic command theory of law that is a sort of crude precursor to legal positivism. Recent provocative scholarship has successfully highlighted many of the overlooked legal arguments Hobbes makes; however, these recent interpretations all portray Hobbes as a proponent of the rule of law constraining the sovereign. I show that Hobbes held that positive law is dependent, not just on having been commanded, but on many other factors such as the system of law in place and the legal understanding of those subject to law. However, this more complex understanding of the requirements of law serves, not to weaken sovereign power, but rather to bolster Hobbes’s theory of unified political authority over and above the law.

Second, I show that Hobbesian political power is more legalistic than is commonly thought. Hobbesian political power is almost universally portrayed as being arbitrary and frequently understood in terms of physical force or the fear thereof. The famous frontispiece of Leviathan, the sovereign larger than life who wields a sword over and above the land, seems to embody this arbitrary power. However, as I show, Hobbes was committed to a theory of the state that was legal and procedural. While thoroughly legal, it is not exclusively so; the Hobbesian sovereign is absolute in that legitimate sovereign action necessarily extends beyond law. Yet, the sovereign will is generally executed through law and, as such, sovereignty for Hobbes depends upon how the officers of sovereignty interpret and apply the law. This throws into question the distinction between the right of sovereignty and the exercise of sovereignty that has been made popular recently in political thought.

Third, Hobbes conceives of legal interpretation and execution as existing outside the sovereign legislator, and therefore empowering subjects to act against the sovereign; but I differ from recent work that defends a Hobbesian right of resistance by arguing that he gives subjects this power only in order to protect and further empower sovereignty itself. On my interpretation, there is not only an asymmetrical relationship between obligation and authority in Hobbes’s theory (in which authority is absolute but subjects’ obligations are qualified), but a further obligation of subjects to support the absolute authority of sovereignty even against the sovereign herself. Looking at Hobbesian absolutism through a legal lens reveals that the sovereign has absolute power, not simply because she has the sword, or because she has been authorized absolutely. Rather, it is because subjects have a moral and legal obligation not merely to obey sovereign command, but to actively ensure that sovereign right remains absolute even should the sovereign herself attempt to legislate otherwise. Subjects must, if necessary, defend absolute sovereignty against the sovereign.

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