How Hobbes Met the ‘Hobbes Challenge’
| Published date | 01 May 2009 |
| Date | 01 May 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00754.x |
REVIEWARTICLE
How Hobbes Met the ‘Hobbes Challenge’
David Dyzenhaus
n
Richard Bellamy, Political Constitutionalism: A Republican Defence of the
Constitutionality of Democracy,Cambridge: Cambridge University Press, 2007,
270 pp,pb d16. 9 9.
‘But as men, for the atteyning of peace, and conservation of themselves thereby,
have made an Arti¢ciall Man, whichwe call a Common-Wealth; soal so have they
made Arti¢ciall Chains, called Civil Lawes, which they themselves, by mutuall
covenants, have fastned at one end, to the lips of that Man, or Assembly, towhom
they havegiven the Soveraigne Power; and at the other end to their own Ears.’
1
In the last 15 years, a new ‘Republican’critique of li berali sm has emerged. Repub-
licans identify liberalism with the idea of l iberty as non-interference, an idea
coined byThomas Hobbes, entrenched by Jeremy Bentham and rearticulated in
the twentieth century by Isaiah Berlin in his contrast between negative and posi-
tivel iberty.
2
Republican liberty, by contrast, is what one has when one is notsub-
ject tothe domination or mastery of other individuals or the state. As Philip Pettit
points out in the pioneering philosophical analysis of Republicanism, ‘mastery
and interference do not amou nt to the same thing’.
3
One is subject to mastery
when one is in practice or potentially subject to the decisions of another who is
permitted to decide arbitrarily, that is, as he likes, without regard to what will
serve the interests of those subject to his decisions.
4
In contrast, if someone is
allowed to interferewith me, but onlyon condition thatthe interference promises
to further my interests and in accordance with opinions I share, there is no dom-
ination since the interference is not on an arbitrary basis. ‘The person envisaged
relates to me, not as a master, but more in the fashion of an agent who enjoys a
power of attorney in my a¡airs.’
5
n
Professor of Lawand Philosophy,University of Toronto. I thank the students in my Hobbes seminar
in the Law Faculty of NewYorkUniversity in the Fall semesterof 20 08 for their fervent resistance to
myarguments, especially Nick Colten and Arie Rosen,who also provided me withwritte ncomments
on a draft, as did Arthur Ripstein, MarkWalters,and Lars Vinx.I also thank al l the participantsi nthe
Colloquium in Legal and Social Philosophyi nthe Faculty of Laws at UniversityCollege, London, for
a stimulating discussion of the penultimate draft.
1 ThomasHobbes, Leviathan (Cambridge: CambridgeUniversity Press, ed R.Tuck,1997)ch 21,147.
Hereafter,‘Leviathan’.
2 I. Berlin,‘Two Concepts of Liberty’, in Berlin, Four Essayson Liberty (Oxford: OxfordUniversity
Press,1969), 118.
3 P.Pettit, Republicanism: ATheoryof Freedom and Government (Oxford:Oxford University Press,1997),
21.
4ibid, 22^3.
5ibid,23.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(3) 4 88^506
Contemporary Republicans acknowledge, however,that the liberal tradition is
not exclusively identi¢ed with a commitment to negative liberty; it also includes
strands no less committed than Republicans to the social and political equality
that they think is important to the achievement of non-domination, to democ-
racy and to a critique of domination, whether by individuals or the state. Con-
sider, for example, the fact that John Stuart Mill, whose harm principle is seen by
Republicans as a quintessential articulation of the idea of liberty as non-interfer-
ence, deployed the same package of ideas that lay behind the harmprinciple in an
important critique of th e subjection of women to the domination of men in both
private and public life.Thus Pettit blames Mill for taking part in the process in
which the ideal of non-domination gets lost, while recognising that Mill penned
a classic critique of domination,
6
just one example of the general di⁄culty
Republicans experience in their attempt to distance themselves from the liberal
traditionbroadly conceived.
This general di⁄culty a¡ects the institutional recommendations made by
Republicans. Quentin Skinner, one of the two leading ¢gures in the Republican
revival, seems to emphasise adoctrine of parliamentary infallibility and the com-
plete extension of the control of parliament’s law over the executive, in this way
adopting theposition of the Republicans of Hobbes’s day.
7
But Skinner’s empha-
sis does not really serve to distinguish Republicanism from the institutional the-
ory put forward by that arch nineteenth-century liberal, Albert Venn Dicey, for
whom thesupremacy of Parliament and the ruleof law were the main features of
the English Constitution.
8
Pettit, the other leading ¢gure, is more clearly enthusiastic about judicial
review and bills of rights, bu t claims that a Republican polity is one i n which
endless contestation is somehow institutionalised; individuals do not have to
accept the authority of the law if they think that the law fails to serve their inter-
ests.
9
However, the moments in Pettit where he seems to advocate endless con-
testation suggest a kind of anarchism di⁄cult to square with the Republican
thrust of mostof his arguments, whichhas to do with establishingan i nstitutional
framework of democracy and the rule of law that will permit citizens to regard
government as non-dominating evenwhen they disagree with the content of par-
ticular laws.
The latest Republican sallyagainst liberalism, Richard Bellamy’s Political Con-
stitutionalism: A Republican Defence of the Constit utionality of Democracy,isthuswel-
6ibid,49 & 139.For a discussion of the relationship between the harm principle and Mill’s critique of
the subjection of women, see D. Dyzenhaus, ‘John Stuart Mill and the Harm of Pornography’,
(1992) 102 Ethics 534.
7 Skinner’s Republican political agenda has to be inferred from passing remarks in his critique of
liberalism, more particularly from his apparent approval of the Republican political programme
at the time of the CivilWar,as in Liberty BeforeLiberalism (Cambridge: Cambridge UniversityPress,
1998)and Hobbes and Republican L iberty (Cambridge:Cambridge University Press,2008). See also Q.
Skinner,‘Hobbes on Represe ntation’ (2005) EuropeanJournal of Philosophy 155.
8 A.V.Dicey, Introduction to the Studyof the Law of the Constitution(London: Macmil lan,8
th
ed,1924).
9 Pettit argues explicitly for what he calls ‘contestatory democracy’in Republicanis m, but the argu-
ment is thin on institutional detail and implications. Even those who do attemptto come up with
something more precise do not come up with proposals that are in any sense illiberal ^ see for
example,A. Tomkins, Our Republican Constitution (Oxford:Hart Publishi ng,2005),131^41.
How Hobbes Met the ‘Hobbes Challenge’
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(2009) 72(3) 488^506
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