Thomas Hobbes gave law a prominent role in his works focused on politics. Despite this fact, there has undoubtedly been little engagement with Hobbes as a legal thinker. Hobbes and the Law is a valuable effort to remedy this by providing the first collection of chapters explicitly dedicated to Hobbes' contributions to legal theory. The collection includes detailed though accessible articles from scholars in the fields of political philosophy, the history of political thought, legal theory, legal history, public law, criminal law and criminal justice. The aim in publishing the collection is thus to make a contribution to the scholarly study of Hobbes and to enrich inquiry into Hobbesian themes.
There has always been interpretive controversy surrounding the figure of Hobbes, and this certainly also applies to his legal theory. One of the strengths of the publication is its acknowledgement of this fact by including in one volume essays providing strongly contrasting modes of interpretation. From the essays included in the collection, it seems possible to identify three main interpretive positions.
The first three essays yield solid support to what might be characterized as the orthodox view of Hobbes as an early legal positivist. Thus, Martin Loughlin claims that Hobbes' argument that the authority of the state rested on natural law did not lead him to recognise the validity of a higher law. On the contrary, he argues that Hobbes used natural law as an instrument to overthrow the idea that the laws of nature are transcendent standards to which the state is answerable, which transforms them into a set of axioms of civil peace. Hobbes' objective was thus to explain that there could be no valid law except that of civil law, and that its basic function was to meet the conditions of his civil science.
Driving to the same conclusion, Ross Harrison provides a penetrating analysis of Hobbes' puzzling statement that “the law of nature and the civil law contain each other and are of equal extent”. Harrison argues that properly understood, natural law and civil law are neither equal in the extent of their content, nor in the extent of their power. Natural law merely shows that there has to be civil law, but does not thereby limit its content. This view is also supported by Michael Lobban, who convincingly argues that Hobbes' law of nature consisted in the conclusions of individual men's reason regarding the best means of their self – preservation, and that their rationale was to impel men to set up a state that would be the source of all laws governing them. Although Hobbes said that the representative of the person of the commonwealth could sin against natural laws, the concept of equity did not, on Lobban's account, provide a standard for judging the representative which was not dependent for its content on the representative's own interpretation. Judges could thus neither claim that they had any special skill in understanding what equity required, nor could they use equity to set aside iniquitous laws.
The first three essays in the volume are all clear and sophisticated efforts to defend a vision of Hobbes which has come to be predominant, and which undoubtedly has strong support in his texts. Hobbes is however an extremely ambiguous figure and this fact alone is enough to explain the existence of alternative interpretations.
In this volume, a second line of interpretation is represented by Thomas Poole. He points to a tension in Hobbes' legal theory between a commitment to government by an entirely artificial person who makes his judgments known only by enacting public laws, and a commitment of necessity for that same person to be able to act against the law by relying on his prerogative authority to decide what is best for the safety of the citizens. On Poole's interpretation, this tension does not make Hobbes' system unstable, but rather holds it together. Poole's argument is that even if prerogative power is only rarely if ever put into practice, its existence is a precondition for the effective exercise of legal authority. The fact that force is available behind the operation of positive law makes the representative of the person of the commonwealth feel secure and so more likely to exercise power through ordinary legal channels. This is certainly a plausible and very interesting solution to the tension between enacted law and prerogative in Hobbes' political argument.
Like Poole, the contributions in the volume that represent the third line of interpretation do not seek to reduce Hobbes' account of law to the enacted law of the representative of the person of the commonwealth. Unlike Poole, however, these scholars argue that the state's artificial role is constituted by the laws of nature in ways that give a moral shape to civil society thus aiming at softening considerably Hobbes' reputation for authoritarianism. Thus, Alice Ristroph provides a lucid analysis of Hobbes' theory of punishment to show that although Hobbes thought that a state had to punish those who broke the law, he was at the same time concerned about the inhuman character of punishment. He was therefore, according to Ristroph, anxious to moderate the inhumanity of punishment by subjecting it to the rule of law. Then, in a very contentious essay, Evan Fox-Decent claims that the representative of the person of the commonwealth must, according to Hobbes, exercise his powers in accordance with the laws of nature. This, Fox-Decent argues, is because the representative's subjection to those laws is what justifies the fiduciary authorisation he enjoys as a public agent of necessity to establish a legal order. A failure to abide by these laws would subvert his authority and the moral claim he could otherwise make to his subjects' obedience. A similar mode of interpretation of Hobbes finds expression in the article by Dennis Klimchuk, in which he explores Hobbes' discussions of equity, arguing that conformity with equity serves as a criterion of legality in the common law, as well as a principle of statutory interpretation.
As representative of this third line of interpretation, the volume also includes essays by Lars Vinx and David Dyzenhaus. Vinx's argument is that Hobbes developed a distinctive idea of civic liberty which expressed the requirement that all political rule must abide by rule of law standards. Dyzenhaus' claim is that, unlike both the command theorists and contemporary legal positivists, Hobbes defends a theory of legal authority in which the laws of nature are given a prominent role in the determination of the content of the law. Only by understanding Hobbes in this way can we, according to Dyzenhaus, appreciate why Hobbes could claim that law is the command of a sovereign and at the same time see that he was not putting forward an authoritarian account of law. One general difficulty with the third type of interpretation is that it seems to connect Hobbes' doctrine closely to a conception which historically is the ideology of the limited or liberal state. Although Hobbes arguably provided liberalism with some of its core assumptions, it nevertheless remains a well recognised fact that he aimed with all his energies to support the absolute state, namely a state in which power encounters as few limits as possible.
The last essay included in the volume is not directly involved in the dialogue above, but is a valuable attempt to study Hobbes' use of Roman law in his political thought. Despite Hobbes' disavowal of Roman civil law in his general philosophy of law, Daniel Lee argues convincingly that Roman law nevertheless functions as a rich fund of concepts in framing central aspects of Hobbes' civil science.
As a concluding remark, it seems clear that Hobbes and the Law succeeds in illuminating the breadth and depth of Hobbes' legal theory and at the same time succeeds in bringing to light the variety of different possible understandings of it. It thus amounts to a highly valuable contribution to Hobbes scholarship.
