The history of political ideas is also a history of powerful metaphors and analogies. Both have helped shape how we imagine and perceive polities, public authorities, and their conduct. Plato, for example, famously compared the state to a ship.Footnote ¹ The analogy brings forth connected ideas of sophisticated divisions of labor, occasional storms, and captains as resilient leaders. The comparison made a great career in Western political thinking. Another and similarly iconic image is the one proposed by Thomas Hobbes in the seventeenth century when he compared the state with a biblical sea monster.Footnote ² Hobbes imagined the state as an anthropomorphized Leviathan—as a powerful, erratic, and artificial giant. We carry this image of a personified Leviathan “in our heads” (p. 2), writes Daryl J. Levinson, a professor of constitutional law and theory at New York University in his recently published book Law for Leviathan. The book addresses the persisting influence of Hobbes's image on our understanding of the state and of its relationship with the law. The book can be read as an attempt to deconstruct a number of fallacies connected with the metaphor. Levinson critiques, for example, prevailing ideas on addressing state wrongdoing. He argues that the state is treated in this connection as if it were one homogeneous natural person—which would suffer from financial sanctions as humans would. Despite this, those who run the state, he argues, rarely pay these sanctions; instead, the financial burden of state wrongdoing always falls upon the “real-life people who live within its (the state's) borders” (p. 196). For the author, the state is a “manmade technology” (p. 10). He even goes so far as to say it could “plausibly” be “the single most powerful technology ever invented” (p. 86)—and the question therefore is now how to optimally empower it, whilst at the same time mitigating the many associated risks. The author discusses “regulation techniques” and the question of what might be the yardstick for assessing state conduct. The result of this ambitious undertaking is a highly interesting and well-written book.Footnote ³ The author refers to the Leviathan metaphor in the title. He appears to accept that human thinking and the use of metaphors and analogies are, to some extent, destined to co-exist.Footnote ⁴ This seems to be part of the human condition. The complex interplay between our thinking and the external reality, however, always requires scrutiny.Footnote ⁵ As the above example concerning sanctions may have shown, the use of images may be misleading. Given the longevity of powerful metaphors, this scrutiny is hard work as pithily noted by literary critic Paul de Man in 1979: “Metaphors are much more tenacious than facts.”Footnote ⁶

For two reasons, Law for Leviathan is a book of particular interest for international lawyers. First, the author is interested in the state, its potential and how we can optimize its “management.” The state and its risks and potential is daily business for international lawyers, too. The author compares the potential of the state as a concept with that of artificial intelligence. Both come “with enormous potential benefits for human welfare” and with the “risk of catastrophic harms” (p. 10). It is difficult to put the problem more clearly. The author is interested in the “big picture.” His approach is not limited by disciplinary boundaries of constitutional law scholarship where he comes from. He meticulously looks—to be precise: at least in the first half of the book—at both international and constitutional law when he develops his position. With this comprehensive view, which also has the merit of avoiding tiring repetition of well-known discourses, this approach bears similarities with Hans Kelsen's Pure Theory of Law.Footnote ⁷ The reader's attention is treated with respect. Second, the author offers a truly innovative view on the relationship between international and constitutional law. This is really a major issue. He rejects, in particular, the wide-spread constitutionalist reading that constitutional law is “real law,” while international law, “floating outside of the state,” is in principle “fake” law (p. 6) or something similar to this. He distances his argument from established clichés concerning a hierarchy between the two fields. The common constitutionalist assumption of a hierarchy—with constitutional law being superior, of course—is in his view not justified at all. He sheds light on what might be termed a certain over-self-confidence of constitutional lawyers. Constitutional law and international law in his view rather work and come together to create the state as a unique agent. They provide the “Law for Leviathan”: the rules on the creation of the state (as a subject of international law), on the bindingness of treaties, on how the state is structured (separation of powers) etc. Levinson's project is not modest, but “to develop a unified theory of the law for states” (p. 7, emphasis added). This “Law for Leviathan” is distinct from “ordinary” law. Ordinary law in his view is the law produced by the state (for natural persons, corporations, etc.). Law for Leviathan, in contrast, comprises those areas of law where the state itself is subject to law. “Law for Leviathan” has an international law leg, which addresses the external conduct and international status of the state, and a constitutional law leg, which addresses its internal conduct and structure. The author identifies oft-overlooked parallels between the two legs. Specifically, and in contrast to ordinary law, neither feature a higher enforcement apparatus. There is no “super-Leviathan” (p. 44) enforcing either constitutional law or international law. Thus, Levinson highlights the similarities between the two fields, each of which seeks to apply law to states. He is not interested in the well-known dividing lines and in worn-out paths. In our time, in which there is no lack of emphasis on dividing lines, this is soothing.

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In Part I (“Law for States,” pp. 21–79), the concept of “Law for Leviathan” is explained in detail. The main purpose of this part is to show that all “Law for Leviathan”—comprising of elements from constitutional law and international law—must operate without relying on the institutional framework on which ordinary law can rely. This appears counterintuitive with regards to constitutional law (not to international law). We spontaneously think that constitutional law is enforced at least “somehow” by the state itself, even though there are obvious differences to the enforcement of ordinary law. “Law for Leviathan” provisions, however, the author argues, must “make do without the resources of the state it is trying to regulate” (p. 8).

Chapter 1 (“Law without the State,” pp. 23–59) develops this key idea of the book. “(A)uthoritative legal settlement institutions” whose purpose is to clarify the meaning of the law directed toward the state (the “Law for Leviathan”) “are not available” (p. 28) according to the author. “Law for Leviathan” is also often indeterminate or vague. With respect to international law, this is a well-known, classic topic.Footnote ⁸ International customary law, for example, “lacks any clear rule of recognition” to determine “what counts as a state practice,” and under which circumstances “state practices have generated binding legal norms” (p. 29). The process of identifying international law is quite unstructured (id.). But this vagueness also holds true for most constitutional law, the author points out. Ultimately its content also often depends on how “abstract, open-ended” provisions are “interpreted and re-interpreted” over time (p. 32). As such, there is much more similarity between international and constitutional law than one would expect. The author points to well-known examples of long-standing controversies from the U.S. constitutional tradition regarding the status of a right to abortion or a right to bear arms (p. 33). He also mentions that many of the most important constitutional law questions in the U.S.—such as war powers, partisan gerrymandering, foreign policy etc. —are not decided by the Supreme Court, but categorized “political questions” (p. 34). This is relevant in light of the determinacy question. That the author (admittedly) argues almost exclusively in relation to U.S. constitutional law limits the book's horizon a little. He has a clear tendency to generalize features of U.S. constitutional law on too small an empirical basis. To illustrate this by way of an example: the high degree of indeterminacy of the U.S. Constitution stems at least in parts from the extremely high threshold for amending it. It needs to be kept indeterminate to be adjustable to the present at all—as John Marshall famously noted, the Constitution was “intended to endure for ages to come.”Footnote ⁹

The second feature of the “Law for Leviathan” is the aforementioned “enforcement problem.” This is obvious and not very exciting with respect to international law. The international legal order notoriously operates “in a decentralized way” and is enforced mainly “through the actions of other states” (p. 40). Countermeasures are the legal key device of enforcement. Against the background of this cardinal problem, theorists of international law have spent much energy over time on attempting to explain compliance in the decentralized international system. They have pointed to, for example, “realist” cost-benefit calculations (“longer-term benefits,” p. 42) and to the influence of norms on values and conduct of states “irrespective of material incentives” (p. 43, constructivist approaches). Many international lawyers are (to some extent) theory prone due the obviousness of this Achilles’ heel of their field. Their explanation of compliance has become, on the whole, relatively sophisticated over time. The point the author wants to make is: constitutional law, too, like international law, is not backed by an enforcement apparatus. It faces similar problems. Constitutional law—this really is a key point in Levinson's argument—also lacks a “super-Leviathan” which would enforce constitutional law. Given this lack, it is not clear at all why constitutional law nevertheless is so often complied with. The author raises an irritating and highly interesting question: why have powerful agents such as presidents not violated constitutional law more regularly? He gives the answer by taking recourse to the explanations offered by international lawyers. He also treats international lawyers and their work with considerable respect. He highlights the similarities between the fields: law compliers as presidents, Congress, etc. are to some extent “intrinsically motivated” (p. 55) to comply with constitutional law (i.e., he uses the constructivist argument), and they want to capture “longer-term . . . benefits of coordination [and] cooperation,” too (here, he uses the “realist” argument) (id.). “Law for Leviathan” therefore is a field of its own with a unique agent. Dividing lines between international and constitutional law blur to some extent while the common ground becomes more visible.

Chapter 2 (“Law Versus Sovereignty,” pp. 60–79) explores the thorny relationship between sovereignty and the two subbranches of the “Law for Leviathan.” The author asks how the idea of sovereignty can be reconciled with the idea of bindingness, both for international and constitutional law. This is, in principle, the problem of squaring the circle. Sovereignty means that the sovereign stands “above the law” (p. 61); at the same time, however, the sovereign should be regarded as bound by the law. The problem is well-known in both subfields of the “Law for Leviathan,” and the author sees a similar strategy at work to solve it. The “trick”—the author does not use the blunt term—is to attribute the binding character of the law to “prior acts,” which the sovereign has already given its consent to at some point (p. 74). Later acts are then presented as in one sense or another derived from the former—the consensus can be slowly expanded. International lawyers regularly use this strategy and they know this. They use it when they justify the binding character of obligations to which states actually “have never chosen to embrace” (p. 64) —such as jus cogens norms or human rights obligations not known so far. Constitutional lawyers, according to the author, in principle argue similarly. They say that the constitution must be understood as the “ultimate expression” of the sovereign's will (p. 67). It binds the sovereign—but it should also be seen as the expression of its will. On the basis of this (contradictory) argument, constitutional lawyers argue that the constitution should not be seen as a limitation of the sovereign. The problem is defined away by replacing the sovereign with the constitution. The strategy aims to conceal that no ordinary, democratic lawmaking process takes place to determine the content of the constitution. The problem of sovereignty is, however, tamed rather than solved by way of this strategy. International lawyers are aware of this. The argument of sovereignty as a counter-argument to legal claims is omnipresent.

Part II (“Managing State Power,” pp. 81–162) concerns the operative dimension of the state. It addresses the regulation and discusses several “managing techniques” to balance potential for development and possible risks. As a starting point, the author suggests another analogy. He compares the state's potential with that of “nuclear fusion” (p. 85) and its possible benefit for welfare. The state is, however, as the comparison makes clear, a most ambiguous social practice. The author also points to the Rwandan genocide. This macro-crime, he argues, could not have happened in most African states which “lacked Rwanda's high level of bureaucratic capacity” (p. 95). The fundamental challenge therefore is, as already mentioned above, “to harness the benefits while mitigating the risks” (p. 92). Regulation of the state therefore is a task of sophisticated engineering and balancing. Chapter 3 (“State Building and Unbuilding,” pp. 83–110) begins with the very basics of this task. It discusses the most elemental regulation strategies—“state empowerment” and “state incapacitation.” “Incapacitation” in the author's terminology means eliminating (or withholding) tools or resources that contribute to state capacity (p. 95). Both empowerment and incapacitation can result from international and from domestic politics or lawmaking. States, for example, “routinely take steps” to reduce their rival states’ “military, economic, or internal governance capacity” (id.). They enter, for example, military alliances to reduce the relative power of an aggressive state, or they impose a federalist structure on a defeated state as Germany after World War II to prevent a too strong government. Incapacitation is an important preventive way of managing future risks of states. “Structural barriers” in particular (such as a federalist structure or separation of powers) are important as they “are more difficult to override” than mere rules or rights (p. 98). The author gives specific credit to such structural barriers. The point he wants to make is: pay less attention to mere rules or rights and more attention to structural barriers against (too) strong state power.

Chapter 4 (“Rights and Votes,” pp. 111–38) discusses more specific regulation techniques. Two modes of control of the state are distinguished: control of the use (e.g., by legal constraints) and control of the users (i.e., of the authorities). The author calls the former technique “direct control” (through “rights”) and the latter “indirect control” (through “votes”). When constitutional rights set limits to state action or when treaties establish commitments to respect human rights, this is direct control through “rights.” When citizens select the actors who then exercise state power, this is indirect control through “votes.” Both mechanisms set—directly and indirectly—limits to the use of the state. The distinction between “rights” and “votes,” however, seems not entirely convincing to the reviewer. It is insofar somewhat idiosyncratic as some “votes” (according to the author's terminology) are also considered “rights” in conventional terminology—most obviously in the case of voting rights. The terminology might lead to a certain confusion. Nevertheless, the chapter has some obvious merits. It highlights the interplay between the two modes of control. Direct control of the state (e.g., through constitutional rights) and indirect control (e.g., through elections) are complementary ways of managing the state's potential and risks. This means: both are essential and together build the whole. They realize the concrete degree and form of control of the state. The author plausibly and convincingly claims also that “rights and votes” should be seen as “functional substitutes” (p. 113). One form of control can be replaced by the other, at least to some extent. To make the thought of the author more explicit: they can be combined in many ways, and there is no “correct” answer to the question how they should be combined. There is no blueprint, there is only a best possible combination in the concrete instance. The author finds that his own discipline has been “acculturated to see the two [modes] as opposites” (p. 111) rather than as functional substitutes. Constitutional lawyers, for example, typically emphasize the tension between fundamental rights and democracy. They create a strong opposition: they perceive constitutional rights as “extrapolitical limitations” on the exercise of democratic rights (id.). International lawyers in the author's perception have a more developed sense of the interplay of direct and indirect control instruments. In the field of human rights, for example, victims regularly appeal to both international human rights law (“rights,” direct control) and to “powerful states capable of humanitarian military interventions” (p. 112, “votes” in the author's terminology, indirect control). The author seems to suggest that our intuitive preference for “rights”—where a new problem appears, we claim “new rights” to solve it—is rather overestimated. New rights can be the solution in some instances, of course, but they are not necessarily a panacea. Their creation can also have unintended and counterproductive consequences. Minority rights, for example, can even “undermine social stability by entrenching lines of division” (p. 132). This is not a trivial statement in our decade. The issue is to find the right, appropriate, balanced combination of “rights” and “votes.” The author makes clear that he deems participation rights (“votes,” in his terminology) particularly important. He quotes Martin Luther King in this context: “Give us the ballot, and we will no longer have to worry the federal government about our basic rights” (p. 117, with reference). The author's considerations are subtle and convincingly sketch the “big picture” of how the state can be controlled. The chapter is original despite its tendency toward idiosyncrasies.

Chapter 5 (“Balancing Power,” pp. 139–62) deals with a specific topic in the field of “votes.” It contains a sweeping critique of the Madisonian concept of “checks and balances.” To put it frankly: the chapter does not fit very well into the argument made in Part II in general. The reviewer was surprised that in this chapter, the text becomes almost exclusively a constitutional law text (and also a little by the sometimes harsher tone). The author starts with the role of the “balance of power” principle in international relations. He argues that in this realm, the principle might be a good solution to the stability problem as “no state can become dangerously dominant” (p. 142). The constitutional version in the United States, however, which is inspired by the international conception, is in his view utterly misguided. The author goes so far as to say that the Madisonian model reflects no less than a “fundamental misunderstanding of how states and governments behave” (p. 148). The problem, he argues, is an incorrect understanding of the dividing lines in U.S. politics. The “battle lines” in the United States are typically not between “Congress and the White House, but between Democrats and Republicans” (p. 139). President Trump's attempt to overturn the result of the 2020 election was supported by most Republicans in Congress (p. 140). Constitutionalists, however, do not recognize enough that the lines of competition “align only . . . coincidentally with the power of government institutions” (p. 145). Balance of power would only make sense in a system of “mixed government” or “consociational democracy” (p. 156), not in a system such as the U.S. Constitution. U.S. constitutionalists therefore would do well “in shifting focus to Leviathan's subjects” (p. 162)—to ordinary people and the many groups which are not represented in the powerful institutions. Constitutionalists should ask more often: “who possess[es] political power over the power of the state” (id., emphasis removed)—and who does not? Between the lines one reads: why are my colleagues not more furious about this? Why are they not more interested in the groups that are not or not adequately represented in the powerful institutions? Of course, the critique touches upon a fundamental problem of many Western democracies and of U.S. democracy in particular. The idea of democracy is difficult to square with extreme concentration of political and economic power in hands of a few. That a U.S. presidential campaign nowadays requires hundreds of millions of dollars positions the oldest and most venerable modern democracy in the neighborhood of plutocracy. The critique by the author, however, and as justified as it seems, is not followed by concrete suggestions. The reader is left behind somewhat unsatisfied. Interesting thoughts become loose ends.

Part III (“Bad States,” pp. 163–224) deals with state wrongdoing. The author wants to offer an alternative framework to the predominant one for assessing state wrongdoing. Also in this part, the author concentrates on constitutional law. International law no longer plays a role. The key idea of Part III is: a number of problematic features of state liability follow from constitutional law's unreflected personification of Leviathan. The author in particular sees a problematic connection between the dominant libertarian understandings of constitutional rights in the United States (too restrictive interpretation of constitutional rights) and the persisting influence of the Leviathan metaphor on our thinking. Constitutional law and practice are presented, in other words, as to some extent “derived” from our imagination of the state as a giant.

Chapter 6 (“Personal Morality and Political Justice,” pp. 165–93) contains a critique of constitutional law's too narrow focus on small-scale harms to individual interests and what the author calls “negative responsibility” (p. 15). The focus is too much on state action, whilst inaction with respect to bigger injustices mostly remains constitutionally out of sight. The author highlights this in relation to racial and other inequalities which remain “invisible to constitutional law” (p. 169). He criticizes that priority is given too often to “corrective over distributive justice” (p. 179). Referring to Ronald Dworkin and John Rawls, he formulates his alternative: the yardstick for correct state conduct should be “equal concern and respect” (p. 167) for humans. Dworkin calls this principle the “special and indispensable virtue of sovereigns” (p. 168). The author adopts this guiding idea. The state can and should do more for a just society than the individual with his average shortcomings. From Rawls, the author then borrows the idea of “division of moral labor” (id.). The state and individuals have different roles in the field of morals: while the state is responsible for “systemic demands of justice,” the individual is subject to more localized legal and moral standards (p. 15). The author on this basis argues for “constitutional welfare rights” (p. 171). This is plausible and consistent with his other positions. It appears, however, also slightly conventional, particularly in light of the high ambition to formulate a “unified theory of law for states” (p. 7). The chapter reads easily and is to some extent entertaining. Critically, it could be argued, however, that it aligns a bit too closely with the expectations of liberal U.S. constitutional lawyers and displays a certain amount of political partisanship.

Chapter 7 (“No Body and Everybody,” pp. 194–224) addresses sanctioning of state wrongdoing. The author identifies fundamental shortcomings in current constitutional law in relation to this topic. It is wrong in his view to assume that the state would correct its conduct if compensation obligations were imposed upon it. He questions the premises on which this idea is based. As touched upon previously in this review, the author argues that states have “no intrinsic interest in avoiding the kinds of losses that [such] sanctions impose” (p. 195). Any material consequence of sanctions fall on real-life people. The negative incentive of compensation obligations does not work properly. The Leviathan metaphor, once more, serves somewhat as the strawman that is blamed. It leads to misleading analogies between state and humans according to the author. The same holds true in his view for the assumption that the state has an interest in growing richer or in becoming bigger. Neither is the case, he argues, one therefore should look through the artificial body of Leviathan. Part III as such, seems less original than the other two parts of the book. There are less conceptual considerations, and the arguments displayed are more conventional.

The concluding remarks (“New Leviathans,” pp. 227–44) finally address the state in the globalized world. Globalization does not play a role in the earlier parts of the book. In the twenty pages, the author asks about what might have become different “in a world in which states have ceded their position of centrality” in many respects to other actors (p. 228). In fact, he sees “global governance” all over the place: proliferated international, regional, and non-governmental organizations in which “Big Tech” and multinational corporations constitute a particular challenge to states. He regards them as new Leviathans. By giving the chapter this title, he suggests a high degree of comparability. Intentionally, of course: states and corporations in his view resemble one another “more than either resembles a real-life person” (p. 236). Corporations and states—as social phenomena—are to some extent relatives. The comparison therefore “can be illuminating” (id.). The author exposes similarities as the “control problem.” This leads him to the suggestion that the regulation techniques (discussed in Part II) could also be applied to these new Leviathans. He seems to suggest that his “unified theory of the state” might help also to better understand and regulate globalization and multinational corporations. The reviewer, however, does entirely understand what the author concretely means by this. The many differences between states and corporations (concerning territoriality, purpose, etc.) remain largely undiscussed which slightly gives the chapter the impression of a rather hasty afterthought.

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Law for Leviathan is a significant and original book on the complex relationship between law and state. It offers a remarkable and new perspective on the topic. It distinguishes, in an innovative way, between law of the state (ordinary law, enforced by way of the state's monopoly of legitimate force) and law for the state (law which, i.e., creates the state as a legal subject, its bodies, etc.). The book looks at the roles of—and the interplay between—international and constitutional law and sheds light on oft-overlooked similarities. The author's main thesis is that international and constitutional law are much more similar than we typically assume. They both are not backed by an enforcement apparatus, and both international and constitutional lawyers experience difficulties when they have to explain how the bindingness of the norms of their field is reconciled with the self-description of the state as “sovereign.” Both international and constitutional law are also often relatively indeterminate—much more than “ordinary law.” The book brings together the disciplines of international and constitutional law which, one could say, are typically distinguished by their particularities. It contributes to deconstructing myths and clichés about constitutional law as “real” as opposed to international law as “soft” or even “fake” law. “Law for Leviathan” is a thought-provoking book. It promotes a sense of the “big picture.” Particularly worthy of mention is also the discussion of “regulation techniques” with respect to the state. By distinguishing strategic options (state empowerment and unbuilding) and middle or small-scale regulation (control of use and users of the state), the book presents regulation as a complex multilevel task. This is highly convincing, even though the author's technological language sometimes irritates. State regulation probably is an art rather than a mere technique: it requires a sense of the interplay of the techniques with many external factors and an understanding of what could constitute a meaningful whole. There is no recipe. Navigating a ship is not a mathematical task.

The diagnosis dimension of the book seems, however, stronger than the suggested medication. Two aspects are picked out here. Why, for example, does the author not discuss international law's framework for state responsibility when he discusses state wrongdoing? The history of the responsibility of states for (internationally) wrongful acts is a history of gradually and pragmatically developing a regime to “wipe out all the consequences of the illegal act” (as the Permanent Court of International Justice formulated the goal in the Chorzów Factory case in 1927).Footnote ¹⁰ The key idea of the (nowadays well-established) framework is to impose full responsibility on the violating state. The international piece of this topic is missing in the book discussed here, descriptively and normatively. The reader wonders why the author has given up the ambition to cover both international and constitutional law when he searches for the right yardstick, which is a crucial question. When the book comes to alternatives to the present conceptions, the focus seems generally less on the “big picture.” The discussion becomes more small-scale, more adjusted to well-known positions of the constitutional discourse. As a reader from the outside, one also finds oneself slightly wondering whether the “wrong” understanding of constitutional rights in the United States is really—as the author seems to argue—the problem of U.S. state wrongdoing. This is hardly convincing. One is tempted to reply: in less polarized—or radicalized—societies than in the United States, the engineering of political justice can also be understood as the everyday task of “ordinary politics.” There is no necessity to frame essential failures of U.S. politics—to build enough stable bridges between the many groups of the American society—as problems of a “wrong” understanding of the U.S. Constitution and constitutional rights. Where the author writes about the medication to the current situation, he becomes more conventional than in the rest of his remarkable book. On the whole, it is a fascinating work. It can be strongly recommended for reading to both international and constitutional lawyers.