1. Though Thomas Hobbes is often regarded as the first legal positivist that title more aptly describes John Selden (1584-1654), both because Selden was the first thinker systematically to explore and develop characteristically positivist ideas, and because his position embodied in many ways a more thoroughgoing conventionalism than Hobbes was later to adopt. Passages from Leviathan dealing with the relationship between “law” and “right” are strongly reminiscent of similar, albeit less sophisticated, passages in the writings of some of Selden’s closest followers. In particular, see Selden’s Mare Clausum [1618; published 1636] and Jani Anglorum, in Tracts [published 1681].

2. The consensus that Hobbes was a legal positivist is by no means absolute: see, for example, Murphy, Liam, “Was Hobbes a Legal Positivist?” (1995) 105 Ethics 846 Google Scholar; also the discussion of religious as opposed to secular readings of Leviathan in Martinich, Aloysius, The Two Gods of Leviathan: Thomas Hobbes on Religion and Politics (Cambridge: Cambridge University Press, 1992)CrossRefGoogle Scholar. See also Boyle, James, “Thomas Hobbes and the “Invented” Tradition of Legal Positivism: Reflections on Language, Power and Essentialism,” (1987) 135 U. Pa. L. Rev. 383 Google Scholar. Murphy’s essay is perhaps the most interesting of these accounts. His argument is, roughly, that Hobbes should not be counted as a positivist since (contrary to the interpretation of Jean Hampton and others) he does not subscribe to the following theses (and particularly not the second), taken to be hallmarks of legal positivism: (1) the pedigree of a norm alone determines whether it is legally valid; (2) the validity of a legal enactment in no way depends on its moral content. It is easy to establish such a claim: Hobbes’s thought lacks any notion corresponding to the modern one of criteria of validity established by complex practices of recognition. Hence, if the propositions (1) and (2) are definitive of legal positivism, Hobbes is not a legal positivist. What Hobbes actually subscribes to is something approximating to the following proposition: (3) law must consist in ascer-tainable standards in the form of authoritative, ex Pressly laid-down (posited) rules if law is to make any contribution to social order in a world of moral doubt. My argument in this essay is that proposition (3) constitutes both the “origin” of positivist thinking (in Hobbes) andits essence: the concern with “conceptual connections” between law and morality is, by and large, an unwelcome distraction from the important issues which have traditionally defined the core of the pos-itivists’ thinking.

3. See Aquinas>, Summa Theologiae 1a 2ae 95.2.

4. See Simmonds, Nigel, “Protestant Jurisprudence and Modern Doctrinal Scholarship” (2001) 60 Cambridge Google Scholar L.J 271 at 280ff The Hobbesian response to the crisis of reason was but one way of revising traditional assumptions concerning the basis of legal authority. The natural lawyers, such as Grotius, responded to it by articulating a conception of natural right which was compatible with diverse forms of social arrangement whilst humanists explored renewed significance in the Roman division of the public and private realms, treating scholarly activity and moral theorising as lying broadly within the latter domain.

5. Hobbes, , Leviathan Part I Ch. 13, page 185 Google Scholar. References to Leviathan are, unless otherwise stated, to the edition by Macpherson, C.B. (Harmondsworth: Penguin, 1968).Google Scholar

6. Leviathan I-6, 120-21.

7. Ibid. The anti-Aristotelian (and anti-utopian) tenor of these remarks is evident.

8. Leviathan I-11, 160: Hobbes uses the point to impugn the value of tradition as a source of moral insight: “the Felicity of this life, consisteth not in the repose of a mind satisfied. For there is no such Finis ultimus, (utmost ayme,) nor Summum Bonum, (greatest Good,) as is spoken of in the Books of the old Morall Philosophers. Nor can a man any more live, whose Desires are at an end, than he, whose Senses and Imagination are at a stand.” Still more starkly: “I put for a generall inclination of all mankind, a perpetuall and restlesse desire of Power after power, that ceaseth only in Death.” (Ibid. at 161)

9. See Hobbes, A Dialogue Between a Philosopher and a Student of the Common-Laws of England at 7 (hereinafter Dialogue). The most widely available edition of this work is that by Joseph Cropsey (University of Chicago Press, 1971). All page references in the present paper however refer to the 1681 edition: The Art of Rhetorick, with a Discourse on the Lawes of England by Thomas Hobbes of Malmesbury (1681).

10. Simpson, A.W.B., “The Common Law and Legal Theory” in Oxford Essays in Jurisprudence, 2nd Series (Oxford: Clarendon Press, 1973) 77.Google Scholar

11. For further details see the excellent discussion in Gerald Postema “Some Roots of our Notion of Precedent” in Goldstein, Leon, ed., Precedent in Law (Oxford: Clarendon Press, 1988) 9.Google Scholar

12. Which sometimes included Coke: see Coke, Sir Edward, Institutes of the Laws of England, bk1, §138Google Scholar.

13. Ibid.

14. Doubt has been ex Pressed whether Hobbes would have conceded such a possibility. Textual evidence suggests it is most unlikely, given Hobbes’s epistemological premises, that broad agreement over abstracts could be forthcoming; however, in Part II of the present paper I shall argue that some level of agreement is possible in the state of nature; for the contrary view see Kramer, Matthew, Hobbes and the Paradoxes of Political Origins (London: Macmillan, 1997)CrossRefGoogle Scholar at ch.2.

15. Postema, supra note 11 at 11, emphasis added.

16. Leviathan II-26, 314.

17. Ibid. at 315, emphasis added.

18. Quentin Skinner has forcefully argued that the Hobbesian laws of nature are tied to his account of the virtues as much as to reason: see his Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1996) at 342.

19. For example, see Leviathan I-15, 216.

20. Ibid. at 216-17. Hobbes goes on to remark that, since laws are a form of command, “yet if we consider the same Theoremes, as delivered in the word of God, that by right commandeth all things; then are they properly called Lawes.” Ibid

21. For example, see Martinich, supra note 2 at 116-22. The imputation to Hobbes of a theory of enlightened self-interest has not, of course, gone uncriticised.

22. Leviathan, I-14, 189-90. Although Hobbes speaks in terms of natural right, it is clear that he uses the term in the modern sense of liberty. Hobbes uses the latter term to denote the absence of external impediments to action and observes that “RIGHT, consisteth in the liberty to do, or to forbeare…“ (ibid). It should be noted in addition, however, that this form of liberty does not signify a legal liberty (in the sense of an action permitted by law though not at the same time deemed compulsory) but an extra-legal liberty, i.e. an action not explicitly mentioned by positive law at all.

23. Hobbes, De Cive, ed. by Tuck, & Silverthorne, , (Cambridge: Cambridge University Press, 1998) at 4.Google Scholar

24. Leviathan, I-14, 190.

25. The question of the basis of natural rights to self-preservation, or sustenance, concerned the question of whether those rights are rooted in a positive community in the earth’s resources, or a negative one. The question of scope was a question about the extent of our ability legitimately to appropriate those resources for our own uses.

26. Leviathan, I-14, 189.

27. See Tuck’s introduction to his edition of Leviathan (Cambridge: Cambridge University Press, 1991) at xxvii. The passage from Leviathan which Tuck has in mind is to be found at II-30 (239 of that edition, 387 of the Macpherson edition).

28. Leviathan, I-13, 184.

29. “But this proveth rather that men are in that point equall, than unequall.” Ibid.

30. Ibid. at 190, emphasis in original.

31. Ibid at 217, 215, 202-03.

32. Ibid. at 188.

33. Leviathan, I-14, 190.

34. Ibid. Hobbes continues “[a man should] be contented with so much liberty against other men, as he would allow other men against himselfe.” Given the context of this remark, and further observations made by Hobbes on the necessity within any civic grouping of taking a stand on distributive questions, it is possible to interpret Hobbes as claiming the existence of a pattern of entitlements preceding the formation of civic legal institutions. Such an interpretation would place Hobbes’s thought in much closer proximity to Grotius than is normally accepted. However, this seems to me much too slender a basis to sustain such a reading, and I believe the intended import of the quoted passage is to highlight the conventional nature of any established pattern of entitlements.

35. Ibid.

36. Leviathan, I-14, 189: “... Law and Right, differ as much, as Obligation, and Liberty; which in one and the same matter are inconsistent.”

37. Ibid. at 185.

38. That is, the requirement that our social behaviour conform to the standards set out by the sovereign is the outcome both of the general prudential concerns embodied in the laws of nature and of the specific natural law obligation that men “performe their Covenants made” (Leviathan, I-15, 201). This law (in Hobbes’s scheme the third law of nature) has been seen as foundational in that it forms the basis of all other forms and instances of human interaction: see e.g., Kramer, supra note 14 at 80. My own view, which I shall not defend here, is that the third law is in fact dependent for its force upon the second, which Hobbes equates to the Biblical injunction: “Whatsoever you require that others should do to you, that do ye to them. And that Law of all men, Quod tibi fieri non vis, alteri ne fecerisľ (Leviathan, I-14, 190). (In fact this principle need not lead to a thoroughgoing prudential standpoint.)

39. Leviathan, I-13, 187 and 185.

40. Ibid. at 184.

41. Ibid. at 186. It is often debated whether Hobbes regarded such a state as a genuine historical phase in the history of human society, or as a hypothetical state into which society can slide at any time. Yet whether or not such a state is conceived as having actually occurred prior to the establishment of civil society is independent of the possibility of its occurring given the conditions of discord Hobbes describes: the potency of that threat is precisely why Hobbes believed we should be willing to give up our freedom of private judgment and submit to the authoritative pronouncements of the sovereign. Hobbes clearly perceived our stock of existing knowledge, both scientific and artistic, as evaporating in the lack of communication and reflection afforded by the belligerent conditions of the state of nature.

42. Leviathan, I-3, 98-99.

43. See ibid. at 101. See also 109: “Understanding being nothing else, but conception caused by Speech.” This dependence of conceptual thought upon language, reminiscent as it is of modern analytic philosophy, must be understood as putting beyond reach all forms of direct intuition to moral truths.

44. Matthew Kramer views the retarded nature of social interaction as likewise precluding the possibility of our interpretations of the laws of nature converging to a degree that would facilitate negotiation of the social contract. Of course, the existence of any contentious interpretations depends upon the possibility of rational thought of the kind I have argued is unavailable given Hobbes’s premises. Kramer’s point is worth quoting, however, since it aptly highlights a further obstacle to one central plank of Hobbes’s positivism: “the only route by which words gain meanings,” Kramer observes, “is the route of dialogues and collective practices.” Thus, “[s]hared interpretations of signifiers must involve the sharing of manifold arrangements and contexts, which yield the quite repetitive interaction whereby people can know that their construals of signifiers have meshed with other people’s understandings thereof.” Kramer, supra note 14 at 126-27, see also 68.

45. Leviathan, I-4, 109-10.

46. Indeed, as noted above, the scope of the natural right shrinks away virtually altogether as the obligations imposed by the natural law fully begin to bite in civil society. The individual does retain limited rights to disobey the sovereign where his or her life is directly threatened, although it is open to debate whether such right-invoking acts constitute bounds upon the legitimate capacity of the sovereign to determine the law for his subjects: for a discussion see Martinich, supra note 2 at ch.1-3.

47. Leviathan, I-4, 109.

48. Dialogue at 4.

49. Ibid. at 5.

50. Ibid. at 11 & 30. The Hobbesian figure of the philosopher ultimately wins the round by a dazzling exercise of rhetorical skill, finally getting the lawyer to admit that what constrains men to the text of a statute is “authority” (ibid. at 7).

51. All quotations in this paragraph: Hart, , The Concept of Law, 2nd ed. (Oxford: Clarendon, 1994) at 124.Google Scholar

52. Pufendorf had indeed observed that “one’s obligation in matters enjoined by authority is limited to what the authority intended .... But a man cannot tell another man’s will except from acts and signs apparent to his senses. Hence one’s obligations, so far as human judgement goes, are held to consist in what a correct interpretation of the signs indicates.” The sense of words however derives “not so much from strict propriety or grammatical analogy or similarity of derivation as from communal usage.” (Both quotations: Pufendorf, On the Duty of Man and Citizen According to Natural Law, Tully, ed., trans. Silverthorne, (Cambridge: Cambridge University Press, 1991) 108 Google Scholar). Pufendorf means here to suggest that linguistic, as opposed to mathematical, usage does not follow strict rules: the words “cat” and “mat” for example, do not enjoy any overlap of meaning by the occurrence of “at.” His acknowledgment of the need for (non-rule-based) interpretation displays a greater sensitivity on the matter than Hobbes, for whom the positive prescriptions of the sovereign enjoyed a perspicuity associated with propositions of mathematics. Yet mathematical propositions also require interpretative consensus if they are to be imbued with meaning (even if the strictness of semantic rules ensures a high degree of precision in the way such terms are wielded and interpreted).

53. An alternative and much extended version of the argument in this section can be found in my “Hart and the Common Law” (forthcoming).

54. Simpson, supra note 10; a revised version appears in Twining, , ed., Legal Theory and Common Law (Oxford: Blackwell, 1986) 8.Google Scholar Quoted passage appears in the 1986 version at 11.

55. Simmonds, supra note 4 at 273. See also Simmonds, , The Decline of Juridical Reason (Manchester: Manchester University Press, 1984).Google Scholar

56. A succinct statement of Hobbes’s opposition to traditional common law scholarship is to be found in Leviathan I-11, 165-6.

57. See Postema, supra note 11 at 16-18.

58. Leviathan II-26, 313.

59. See Leviathan II-26, 316-17: “[Law] is not meant of any private Reason … nor yet, (as Sr. Ed. Coke makes it,) an Artificiall perfection of Reason, gotten by long study, observation and experience, (as his was.) … and therefore it is not that Juris prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law.” (emphasis in original).

60. Leviathan II-26, 326.

61. Ibid. at 327.

62. Dialogue at 3. Hobbes uses the terms “Equity,” “Reason” and “Law of Nature” fairly interchangeably throughout the Dialogue.

63. Ibid.

64. Dialogue at 56.

65. See Hart, supra note 51 at 16; also at 279-80: “The uncritical belief that if a general term (e.g. “law,” “state,” “nation,” “crime,” “just”) is correctly used, then the range of instances to which it is applied must all share “common qualities” has been the source of much confusion. Much time and ingenuity has been wasted in jurisprudence in the vain attempt to discover … the common qualities which are, on this view, held to be the only respectable reason for using the same word of many different things.” For a discussion, see Simmonds, supra note 4 at 296-97.

66. Indeed, Hart’s discussion of customary law (see Concept of Law, supra note 51 at 44-49) can be regarded as, in some ways, dismantling the Hobbesian project from which the positivist tradition started.

67. I am grateful to Dylan Griffiths for this point. Also worthy of note here is David Dyzenhaus’s recent argument that Hobbes should not be considered a part of the positivist tradition (but rather, an “anti-positivist”) on the ground that the “laws of nature are beyond the authority of the sovereign … in that they are both conceptually and empirically constitutive of sovereign authority. A sovereign who systematically violates the laws of nature will at the same time undermine the ability of civil society to function and put himself on the slippery slope to not “counting” as a sovereign.” (“Hobbes and the Legitimacy of Law” (2001) 20 Law & Phil. 461 at 470.) This constraint “distinguishes Hobbes’s legal theory from contemporary positivism [for] from the positivist perspective, an ex Press intention in a law to violate some substantive consideration which is claimed to be the moral or political basis for obedience to law cannot by itself make that law suspect as law.” (Ibid. at 476). But if anyone seriously doubted it, the foregoing arguments demonstrate that legal positivism is in no sense incompatible either with legally limited government, nor with the idea of the rule of law. As we have seen, neither of these concepts excludes the idea that the authority of law depends upon conformity with substantive moral principles: see further my “Practices and the Rule of Recognition” (forthcoming).

68. It is in fact very far from clear that Hart’s position amounts to extreme positivism in either of these two senses, despite some rather unguarded remarks in the second half of The Concept of Law: see “Hart and the Common Law,” supra note 53 passim. For a position which does come close to this sort of extreme positivism, see Neil MacCormick, “ The Concept of Law and The Concept of Law,” reprinted in George, Robert, ed., The Autonomy of Law: Essays on Legal Positivism (New York: Oxford University Press, 1996) 163 Google Scholar.