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3 - The Constitution of Legal Authority / The Authority of Legal Constitutions

Published online by Cambridge University Press:  13 January 2022

David Dyzenhaus
David Dyzenhaus
Affiliation:
University of Toronto
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Summary

This is more than Consent, or Concord; it is a reall Unitie of them all, in one and the same Person, made by Covenant of every man with every man, in such manner, as if every man should say to every man, I Authorize and give up my Right of Governing my selfe, to this Man, or to this Assembly of men, on this condition, that thou give up thy Right to him, and Authorize all his Actions in like manner. This done, the Multitude so united in one Person, is called a COMMON-WEALTH, in latine CIVITAS. This is the Generation of that great LEVIATHAN, or rather (to speake more reverently) of that Mortall God, to which wee owe under the Immortall God, our peace and defence.

Thomas Hobbes1
The constitution of the state demarcates a jurisdiction, an area in which the law commands by right. This idea of constitution is immensely complex, first, because it is ambiguous between constitution as act and constitution as achievement. Constitution as act evokes the idea in the social contract tradition of the Gesellschaftsvertrag – the state is the product of an actual contract between free and equal individuals. Constitution as achievement evokes the idea in that same tradition that in every political order there is a Herrschaftsvertrag – an actual constitutional arrangement which sets out the relationship between ruler and ruled, whether in a written constitution, as in Germany, or an unwritten constitution, as in the UK. To use terms currently popular, the idea of constitution is ambiguous between the idea of constituent power, ‘We, the people’, and that of constituted powers, the artefact of ‘We, the people’.

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The Long Arc of Legality
Hobbes, Kelsen, Hart
 , pp. 149 - 223
Publisher: Cambridge University Press
Print publication year: 2022

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