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Freedom under an Order of Public Law: From Hobbes through Hayek to Republicanism David Dyzenhaus1

INTRODUCTION

In Two Concepts of Liberty, Isaiah Berlin distinguished between negative and positive libertyrespectively freedom from and freedom to--and argued for the priority of negative liberty. 2 Berlin argued that positive liberty is not liberty at all but rather a misleading description of a plurality of values, for example, social equality, that compete with negative liberty; hence, we should be wary of claims that any sacrifice in liberty to promote one of these goods is no sacrifice because a gain in the good is by definition a gain in liberty. Berlin was clear that such sacrifices are often morally justifiable, even required, but adamant that the moral cost in making the sacrifice should be recognized and given its proper weight. Berlin considered his defence of negative liberty as within the liberal tradition of the classical English political philosophers, and specifically endorsed Thomas Hobbess definition of liberty: a free-man is he that, in those things which by his strength and wit he is able to do, is not hindered to do what he hath the will to do.3 From this definition, Berlin thought it followed that Law is always a fetter, even if it protects you from being bound in chains that are heavier than those of the law, say, some more repressive law or custom, or arbitrary despotism or chaos.4 Put differently, any law, no matter how laudable its goal, must be seen as a restriction of liberty. At the end of Two Concepts of Liberty, Berlin spoke of an ideal of choosing ends without claiming eternal validity for them and the pluralism of values connected with this.

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He suggested that this connection might be the late fruit of our declining late capitalist civilization. But, he said, no sceptical conclusions followed. Principles are not less sacred because their duration cannot be guaranteed. Indeed, the very desire for guarantees that our values are eternal and secure in some objective heaven is perhaps only a craving for the certainties of childhood or the absolute values of our primitive past. To realize the relative validity of ones convictions, said an admirable writer of our time, and yet stand for them unflinchingly, is what distinguishes a civilized man from a barbarian.5 To demand more than this is perhaps a deep and incurable metaphysical need; but to allow it to determine ones practice is a symptom of an equally deep, and more dangerous, moral and political immaturity. 6 This warning, written during perhaps the most fraught period of the Cold War, might well seem of a piece with other jeremiads of the time, notably Friedrich Hayeks famous warning in 1944 that the forces of collectivism, whether they march under the banner of equality or nationalism, would put Europe on the road to serfdom.7 This book, along with others, earned Hayek the reputation of the foremost exponent of the position that negative liberty should be given not a complex, but an almost absolute priority. However, Hayeks position was more nuanced than often both his followers and his detractors acknowledge. He did not so much argue that negative liberty should be given an absolute priority as assert a tight connection between liberty and the rule of law, as in his famous statement of the rule-of-law ideal in The Road to Serfdom.8 My focus in this chapter is on the connection between law and liberty, specifically on the connection between law and the Republican idea of liberty as non-domination which takes the idea of negative liberty as its foil. In my view, Republicans have done political 2

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philosophy an immense service both because they have moved attention back to classical themes about liberty and because they have so persuasively argued that the focus of this attention should be the theme of non-domination. Moreover, Philip Pettit, the leading philosophical spokesman for contemporary Republicanism has made the connection between law and liberty central to his account of legitimate political authority. However, as I will argue here, the main result of this contribution is to uncover resources in the liberal tradition, sometimes in surprising places, not to provide an alternative to it. Republicans regard Hobbes as the founder of negative-liberty liberalism and as having put forward his understanding of liberty in order to contest and suppress that of the Republicans of his day. However, as I shall show below, for Hobbes the chief virtue of the rule of law is that it secures non-domination. Moreover, his argument about why it does so might well prove superior to that of Republicans in that it shows in what way the rule of law is constitutive of liberty and not merely instrumental to it, an insight that resonates in the twentieth century in the work of such arch-liberals as Hayek.

FREEDOM AS NON-DOMINATION

In Republicanism,9 his philosophical reconstruction of the Republican tradition, Philip Pettit argues for a conception of freedom as non-domination, which he regards as different from both the negative and positive concepts of liberty discussed by Berlin. Pettit regarded Berlins articulation of the connection between negative liberty and the conception of law as a fetter as proof positive that for Berlin those not attached to positive liberty allied themselves invariably with the Hobbesian tradition. That Berlin had in this way to ally himself with Hobbes demonstrated for Pettit that Republican liberty had not only been lost 3

to political thinkers and activists; it had even become invisible to the historians of political thought.10 Freedom as non-domination can be explained by using a standard example in Republican literature. A slave with a benevolent master might be given lots of latitude to make choices. But the slave is un-free in the sense of freedom as non-domination because the master is entitled to interfere arbitrarily at any moment in the slaves decisions. In other words, domination consists in the subjection of an individual to the whims or arbitrary will of another, whether of the state or of some private person or group, and freedom, on its best understanding, is freedom from dependence on the will of another.11 Freedom as nondomination differs from negative liberty is that it does not require that any actual or potential desire of an individual be thwarted to register a loss of libertyall that is required is the capacity of someone else to interfere arbitrarily in the decisions that individual might choose to make. Pettit also argued that whilst on a view of freedom as non-frustration freedom is always removed by interference, freedom as non-domination not only discerns a loss of liberty in some situations in which there is no actual interference, but also does not suppose that interference always removes freedom. If interference is non-arbitrary in that it tracks the will of the individuals interfered with, it is also non-dominating. As Pettit has conveniently summarized this argument: In the classical republican tradition, this thought is most commonly expressed in the refrain that an empire of law, unlike an empire of men, is not a dominating regime. The laws may impose taxation on all, coerce all with the threat of punishment for disobedience, and impose penalties on those who in fact disobey, but still, so the idea goes, such interferences will not be arbitrary if they are framed in accordance with 4

the will of the subjects and framed so as to protect those subjects from domination by others.12 And he quotes with approval Blackstone, who was soon to be challenged by Bentham: Laws, when prudently framed, are by no means subversive but rather introductive of liberty.13 So far we can see that the Republican critique of liberalism has two strands to it. First, they dispute the claim that interference is necessary for there to be a loss in freedom. Second, they argue that actual interferences are not sufficient to reduce freedom, because if the interferences are non-dominating there is no loss to freedom. A third criticism arises out of Berlins observation that negative liberty is not incompatible with some kinds of autocracy, or at any rate with the absence of selfgovernment. Liberty in this sense is principally concerned with the area of control, not with its source.14 This observation might seem to make Berlin at best suspicious of democracy, at worst hostile (as Hobbes clearly was) to it. We would then have evidence for the claim of critics of liberalism that liberalism of a certain sort is an enemy of democracy or rule by the people, since its defenders wish to establish ramparts around a protected area of negative liberty to repel raids by a tyrannous majority. Moreover, the spatial description of liberty adopted by liberals like Berlinits area-- might seem to imply both that what is important is the size of the area of choice and that the bigger the area the better. Proponents of negative liberty are often thought to embrace both of these implications. The task of the state--the nightwatchman state--is confined to maintaining order only to the extent that successful human interaction requires background conditions of order and stability, and a democracy acts illegitimately if it enacts laws that go beyond securing these conditions.

In contrast, for Republicans it matters a great deal that particular laws have a democratic provenance in order that citizens not be subject to alien control.15 And Pettit argues in Republicanism that the institutional requirements for freedom as non-domination include at least the following: that decisions about the collective good be made by a democratically elected parliament; that the executives decisions about how to implement the legislative programs enacted by that parliament be subject to rule-of-law requirements, supervised by an independent judiciary; and that the political rights of citizens should be guaranteed by an entrenched bill of rights, again supervised by an independent judiciary. Indeed, whilst Pettit wishes to avoid institutional mechanisms that go as far as giving individuals an individual power of veto of legislation, he also wishes to give them as many opportunities as possible to edit government policy, in order to ensure that it tracks their interests, on their conception of what it is in their interests. The more democracy is contestatory, the better.16

BERLINS BREAK WITH HOBBES?

In a recent article, Pettit has offered a more nuanced understanding of Berlins position, and thus of liberalism in general. He argues that Berlins own conception of freedom is not one of negative liberty in Hobbess sense, which Pettit calls freedom as non-frustration, but located on the path between negative liberty and liberty as non-domination. Berlin, according to Pettit, puts forward an idea of freedom as non-interference which occupies an unstable place between these two other conceptions, and which can, Pettit argues, be stabilized only if it moves in the direction of freedom as non-domination.17

Berlin, according to Pettit, explicitly broke with Hobbes in his own commentary on Two Concepts of Liberty by moving from freedom as non-frustration to a conception of freedom as non-interference, and moreover suggested by implication in the actual essay just this break. For in the commentary Berlin said: The extent of a mans negative freedom is, as it were, a function of what doors, and how many are open to him; upon what prospects they are open and how open they are.18 Pettit comments that the important point in this metaphor is that the freedom of a choice turns, not just on whether the door you push is open, but on whether all the doors are open, including those you might have pushed on but didnt.19 In sum, it is implausible to suppose that you can make yourself more free by adapting your preferences to the point that you prefer only the options in fact available to you. However, Pettit argues that Berlins freedom as non-interference is vulnerable to the same kind of objection Berlin ends up making against freedom as non-frustration. For freedom as non-frustration seems to permit that one can make oneself more free by ingratiating oneself with a powerful person who could interfere with ones options in order to get that person to allow one to have ones way.20 The problem with both adaptation and ingratiation is that the freedom the individual has remains dependent on the will of another.21 Hence, Pettit supposes, one should be led by Berlins argument for freedom as non-interference to adopt freedom as non-domination. Not only must the doors be open, but there must also be no doorkeeper who can close a door more or less without cost.22 Thus Pettit finds it unsurprising that Berlin also accepted other commitments dear to the Republican heartthat freedom is the area of free action we have limited only by the law, an area that is artificially carved out by the state, and that the freedom we have should be available equally to each, and should be as large as possible consistently with the 7

existence of organized society.23 But Pettit suggests that one reason why Berlin did not proceed on the logical path from freedom as noninterference to freedom as non-domination is that he feared that such progress entailed embracing a doctrine of positive liberty.24 Berlins view in this regard is that doctrines of positive liberty have an inherent logic that leads to the conclusion that incursions into the protected space of negative liberty do not amount to any loss of liberty because they are justified by what the individual would rationally prefer even if as a matter of fact the actual or empirical individual would not. It is Berlins concern about this logic that led him to give priority to negative liberty. That is, whilst Berlin recognized both that some valuable goods are pursued in the name of positive liberty, notably equality, and that their pursuit might necessarily and justifiably limit negative liberty, he wanted to emphasize that in calculating whether the gain in the good is worth the cost to negative liberty, the cost must always be openly acknowledged and given its due weight. The problem for Berlin, then, with conceptions of positive liberty is not per se the fact that negative liberty is limited. Rather, the problem is that the fact is not appropriately acknowledged, and hence not properly weighed, because conceptions of positive liberty suppose that there is no cost to liberty at all. But it follows, as Pettit rightly sees, that Berlin would have been uncomfortable with the thought that the ideal of freedom as nondomination is the logical terminus of his argument against freedom as non-frustration. Moreover, I think it is clear that Berlin would have worried that freedom as nondomination perpetrates the same magical transformation or sleight of hand in denying the loss to liberty as do conceptions of positive liberty.25 Here we should note that Berlin also argued that such sleights could be perpetrated with conceptions of negative liberty, despite

the fact that they do not easily lend themselves, as do positive conceptions, to splitting the personality into the empirical and the real or rational or ideal self.26 The obvious response open to Pettit is to say that it is just a liberal hangover to keep thinking that the law infringes your freedom simply because it interferes with you. However, Pettit is as averse as Berlin to the paternalism in positive liberty claims to the effect that an individual is not the best judge of his or her own interests. On his view, there is no external standard of excellence to which an individuals choices must conform in order for that individual to be truly free or rational. All that matters is that the individual is able to exercise free, that is, non-dominated choices, whatever he or she decides to choose. Indeed, in his most recent work Pettit says that the most harmful form of domination is actual interference with actual desires, thus showing that something like the idea of liberty as non-frustration has a central place in his political thought.27 These ideas undermine his argument that liberalism goes wrong in supposing that there is something inherently wrong with actual interferences even when that wrongness is compensated for by the gain in some other good. Hence, I tend to agree with arguments made by some critics of Republicanism who see it as in no major respect distinctive from central strands within the liberal tradition.28 I will add to this criticism the reason that at the low altitude29 of institutional design, by which I mean the design of institutions to ensure that government is according to law or in accordance with the rule of law, Republicans, with some exceptions, find it difficult to distinguish themselves from the liberal tradition. However, the exceptions are significant because they embrace a conception of the rule of law that fits well the kind of negative liberty version of liberalism to which ironically they are most opposed. In addition, this embrace creates a problem that is not confined to this subgroup. It displays a tension in contemporary Republicanism itself that explains both some 9

Republicans very partial reading of Hobbes and, more generally, a profound ambivalence in Republican theory about the nature of political and legal authority. I turn for this argument to the figure Republicans believe to be the cause of all the negative liberty trouble, Thomas Hobbes. As I will show, Hobbes is as concerned as Blackstone with the prudent framing of laws so as to make them by no means subversive but rather introductive of liberty, or as Pettit himself puts it, with the Republican thought that to be a free person just was to be a citizen incorporated in the matrix of protection for certain basic choices that is afforded to eachin theory, afforded equally to eachby the rule of law.30

HOBBES ON LAW AND LIBERTY

Pettit has argued more elaborately in other work along with Quentin Skinner that freedom as non-domination is a chronologically prior conception of freedom to the other two. For, as Republicans understand things, freedom as non-frustration was cooked up by Hobbes in his bid to subvert the Republicans of his own day and their conception that one can only be free in a free society, often equated with a political order of parliamentary democracy.31 Hobbes serves as the main foil for Republicans because they think that his conception of liberty in Leviathan is designed to debunk the Republican ideal of a freeman. They emphasize what they take to be Hobbess view that those who are subject to the arbitrary will of an all-powerful sovereign are by definition free. As long as legal subjects live under his rule and are not slaves or in chains, they must take themselves to have consented to his rule and to regard all of his laws as just. It is rational for them to do so, because however obnoxious32 subjection to the will of such a person seems, it is better than being 10

subject to the wills of all other individuals in a state of nature. But even if a subject fails to appreciate the rational force of the argument for his obligation to obey the law, he will be able to appreciate the force of the sanction with which he is threatened should he disobey. Finally, from the perspective of liberty, it does not matter what kind of political regime one lives under, whether it is democratic or monarchical, because the kind of political regime does not affect the quality of ones liberty. There are, according to Pettit, two surprising claims built into Hobbess definition of liberty. The first is that you are only hindered in your choice if you actually prefer the obstructed option. The second is that to be a freeman is to escape all such external hindrance in the options you prefer to take.33 The two claims are surprising because the first makes it too easy to be free, whereas the second makes it too hard. Pettit suggests that the second surprise, that one cannot be a freeman since we cannot escape all hindrances, contains Hobbess fundamental challenge to the Republican argument that to be a free person just was to be a citizen incorporated in the matrix of protection for certain basic choices that is afforded to eachin theory, afforded equally to eachby the rule of law.34 The challenge is fundamental because it strikes at the very heart of Republicanism by redefining the Republican idea of the freeman. According to Pettit, as we have seen, the substance of the challenge resides in defining freedom in such a way that it becomes impossible. However, it is important to notice that the challenge works better on the basis of the first kind of claim, one that makes it too easy to be free, with the upshot that one is always free, as long as one is living under the protection of a sovereign, indeed, that one enjoys the same freedom whether ones sovereign is a dictator, or the ruler elected by the citizens of a self-governing republic.

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This way of putting the challenge is closer in fact to what Hobbes says in the chapter in which he gives the definition of freedom, if not to the definition itself, and it is the way that Skinner supposes it mainly works.35 According to Skinner, Hobbes has a two-pronged argument. In one sense of liberty, the sense of the definition, legal subjects are always free because civil laws do not restrict liberty as they do not amount to physical impediments to action. In another sense, legal subjects are always free because their civic liberty is simply the freedom to act as they will in so far as the civil law does not prescribe a course of action, and so freedom under the law is always the same everywhere.36 That two such eminent exponents of contemporary Republicanism, who happen also to be leading Hobbes scholars, agree that Hobbess discussion of liberty is aimed at the destruction of freedom as non-domination, yet seem to disagree about Hobbess strategy, raises questions about how the strategy could have had the success they attribute to it. I will argue below that the answer is that their disagreement about Hobbess strategy indicates that they have both likely mistaken it. But the issue I wish to focus on goes beyond a claim that Pettit and Skinner have attacked something of a straw man in choosing Hobbes as their target. Rather, it is that their conception of freedom as non-domination is more a reconstruction of Hobbess conception of liberty as liberty under an order of public laws than it is a retrieval of a conception that Hobbes sought to subvert. In addition, to the extent that their attack on Hobbes hits home in that their conception of freedom of nondomination differs from his, Hobbess conception, or so I will argue, might have some advantages. This argument has to contend with the fact Hobbes does put in place all of the major ingredients of the negative liberty view of freedom and law that Republicans contest. For example, in The Elements of Law he says that the sovereign authority, when legislating 12

prohibitions on what was lawful to individuals in the state of nature, must ensure that well meaning men may not fall into the danger of laws, as into snares, before they be aware.37 That is, in this passage, Hobbes does suggest both the image of law as a fetter and that the image fits with his understanding of freedom as the natural liberty of the state of nature. Moreover, since he also says that the sovereign should not put in place a restraint that goes beyond what is necessary for the good of the commonwealth,38 he might be taken to be hinting at the kind of libertarian view that says that the less there is by way of restraint the better. The sovereign should seek to put in place only what is necessary to maintain order and stability. (It could, of course, be no more than a hint since for Hobbes the extent of liberty is entirely up to the sovereign to decide.) But, as we have seen, Pettit and Skinner seem undecided about how Hobbess strategy works. They divide over whether Hobbes makes it too easy be to free or too difficult, with Skinner supporting the first option, and Pettit the second. Whilst Skinner would say that for Hobbes legal subjects are equally free, no matter the nature of their political regime, Pettit must say that they are equally unfree--that subjects are in substance the slaves of their sovereigns.39 The political effect of the strategies is the same, as they both issue in the conclusion that the nature of ones political regime is irrelevant to the question of how free one is. However, as I suggested, Hobbess challenge works better on the basis of the claim that makes it too easy to be free. For the upshot of that claim is that one is always free, as long as one is living under the protection of a sovereign, indeed, that one enjoys the same freedom whether ones sovereign is a dictator, or the ruler elected by the citizens of a self-governing republic. In addition, this claim fits better with the main elements of Hobbess picture of politics, as just painted, in which law is conceived as a fetter on natural liberty. Subjects 13

consent to the way in which the sovereign fetters their natural liberty with his laws because that gives them the security to enjoy what remains of our natural liberty; that is, subjects may do as they like insofar as the law is silent as to their obligations. And this seems to be exactly Hobbess view in The Elements of Law. However, even though Skinners view is to be preferred, it does encounter a major problem, as does the claim that Hobbes sees law as a fetter. For Hobbes does not think that a civil law is capable of fettering natural liberty since he holds that fear of coercion does not count as an obstacle to the will. As Pettit and Skinner have discussed elsewhere, Hobbes did not consider the sovereigns laws to be constraints on liberty since one is physically free to disobey the laws. Fear, in this case fear of punishment, is for Hobbes not a fetter or constraint on liberty.40 Moreover, when we fill in the picture of Hobbess political and legal theory with finer brush strokes, with Leviathan as our palette, the image of law becomes more nuanced. And with nuance our understanding of how Hobbes conceived of the arbitrary will of the sovereign has to become more complicated, with the result that, paradoxically, the sovereigns will has to be exercised in ways that ensure that, in Pettits words, to be a free person [is] to be a citizen incorporated in the matrix of protection for certain basic choices that is afforded to eachin theory, afforded equally to eachby the rule of law.41 The first point to note is that Hobbes is crystal clear that the radical insecurity of the state of nature resides more in the uncontrolled capacity of others to interfere than in actual acts of interference. In his discussion of the state of nature in Leviathan, he says: [D]uring the time men live without a common Power to keep them all in awe, they are in the same condition which is called Warre: and such a warre, as is of every man, against every man. For WARRE, consisteth not in Battell onely, or the act of 14

fighting; but in a tract of time, wherein the Will to contend by Battell is sufficiently known: and therefore the notion of Time, is to be considered in the nature of Warre, as it is in the nature of Weather. For as the nature of Foule weather, lyeth not in a showre or two of rain; but in an inclination of many dayes together: So the nature of War, consisteth not in actual fighting, but in the known disposition thereto, during all the time there is no assurance to the contrary. All other time is PEACE.42 Commentators on this famous passage usually focus on the point about warre, as is of every man, against every man. They thus fail to notice that for Hobbes it is not the interferences that actual fighting amounts to that typifies the state of nature, but the lack of assurance that someone who has the capacity to interfere will not interfere. Thus the point of establishing civil society is to provide that assurance, and the social contract should be entered into in order to achieve that end. The second point to note is that the sovereign who is created by the social contract is an artificial person who is under a duty to serve the interests of those subject to him, and he does so by ruling through law. In chapter 30 of Leviathan, Hobbes discusses the Office of the Soveraign, which he says consisteth in the end, for which he was entrusted with the Soveraign Power, namely, the procuration of the safety of the people. The sovereign is obliged by the law of nature to procure this end and Hobbes adds that safety is more than a bare Preservation, since it includes all other Contentments of life, which every man by lawful Industry shall acquire to himselfe.43 He continues: To the care of the Soveraign, belongeth the making of Good Lawes. But what is a good Law? By a Good Law, I mean not a Just Law: for no Law can be Unjust. A good Law is that, which is Needfull, for the Good of the People, and withall Perspicuous.44 Hobbes then offers the following account of the function of law in civil society: 15

For the use of Lawes, (which are but Rules Authorised) is not to bind the People from all Voluntary actions; but to direct and keep them in such a motion, as not to hurt themselves by their own impetuous desires, rashnesse, or indiscretion; as Hedges are set, not to stop Travellers, but to keep them in the way. And therefore a Law that is not Needfull, having not the true End of a Law, is not Good. Unnecessary Lawes are not good Lawes; but trapps for Mony 45 The last line expresses a concern that bad laws are vulnerable to capture by powerful private elites. The first line gives us an image of law as a hedge that is more nuanced than Berlins image of law as a fetter, or Hobbess in The Elements of the Law as a restraint, that is, more nuanced than the image of law-as-fetter that both Berlin and Pettit suppose follows from Hobbess definition of the free man. For the image of law-as-hedge suggests that hedges are public goods that neither impede our motion nor do they impose an ultimate on our motion. Rather, hedges make mobility possible. The image thus presupposes that there can be such a thing as a non-instrumental law: a law that facilitates individual action. It does not do so primarily because it clearly sets out in advance any prohibition so that one can take the prohibition into account when planning. Indeed, it need not prohibit anything. Rather, what it does, whether it prohibits or not, is put in place the conditions that make it possible for individuals to follow through on their own plans.46 The best modern articulation of the idea of non-instrumentality in law is in Michael Oakeshotts somewhat neglected essay, The Rule of Law, where Oakeshott says that the expression the rule of law, taken precisely, stands for a mode of moral association exclusively in terms of the recognition of the authority of known, noninstrumental rules (that is, laws) which impose obligations to subscribe to adverbial conditions in the 16

performance of the self-chosen actions of all who fall within their jurisdiction.47 By this, Oakeshott seems to mean the conditions that attach to performing actions that are made possible by, though not dictated by, the law. Thus: If you wish to drive from Budapest to Vienna, you must do so on the right hand side of the road does not tell you to make that journey, but makes that journey possible in a way that is otherwise be unavailable to you; If you wish to buy that house you must follow these formalities in order for the contract to be valid, does not tell you to buy the house, though it makes it possible for you to do so; If you wish to interact with other individuals, do not murder, commit other acts of violence, steal, does not tell you whether and otherwise how to interact with them, but it does make possible civilized interaction between you and others. In all of these cases, the subject is at liberty to decide whether to drive, etc. Notice that none of these liberties, whether to bring some state of affairs into being, or simply to get something done under conditions of security, is even possible in a state of nature. Hence, the image of law-as-hedge captures the way in which law of a particular form can be introductive of civic libertyliberty under an order of public law--that otherwise could not be had. Moreover, the choices that this kind of law makes possible create the framework for particular exercises of choice, where to travel to, what legal relationships to enter into, how to interact with others. In sum, this kind of law provides a resource that makes choice in general possible and so also particular exercises of choice. It can thus be said to be constitutive of the liberty to choose for oneself, rather than the instrument of particular goals. It is important to see how civic liberty differs from other conceptions of liberty. First, it is not negative in nature since it is not liberty from the law but liberty introduced by law. It 17

is true that law in making possible the choice could also be said to circumscribe it. But it would be odd to think of this kind of law as a fetter on the choice, just as it would be odd to think of the rules that, for example, constitute the game of chess as fettering the choices that one makes when one plays chess. Second, civic liberty is not positive in nature. The liberty the law makes possible for legal subjects provides them with a resource that they may use or not, at their discretion. Even in the case of the criminal law which enacts proscriptions on certain behaviours that are harmful to others, thus dictating important terms of social interaction, the terms are best understood as making it possible for individuals to choose on their own terms how to interact with others.48 Finally, civic liberty is not a subset of the natural liberty that according to Hobbes individuals enjoy in the state of nature to do whatever it takes to ensure their own survival. That is, Republicans and others take the liberty Hobbes ascribes to the subject in civil society to be the residue of the liberty enjoyed in the state of nature that is left to the individual in so far as the civil laws do not create obligations for subjects. But that cannot be right. Natural liberty is equally and fully enjoyed by subjects in civil society and so they are always equally free in its sense to break the civil law. Their disobedience might result in their liberty being physically restrained, but at that point it is not the law that constrains them but the prison walls or their physical bonds. One has to appreciate these differences to make exegetical sense of Hobbess extensive discussion of liberty in chapter 21 of Leviathan.49 Whilst Hobbes starts the chapter with the definition of the freeman quoted at the outset of this chapter, he goes on to describe what he clearly regards as a distinct kind of liberty, the Liberty of Subjects, which is a liberty in relation to [the] Bonds that are made up of the Artificiall Chains or civil laws, 18

which are issued by the artificial person of the sovereign.50 With perhaps the Republicans of his day in his sights, Hobbes comments caustically that it would be absurd to clamour for liberty from such laws, if liberty is taken as corporeal liberty, since that liberty is one that people manifestly enjoy. That is, to repeat, civil law does not physically obstruct. And it is equally absurd for subjects to demand the liberty to be their own masters, to demand an exemption from the civil laws,51 because that would be to demand a return to the condition of masterless men, that is, to the perpetuall war52 of the state of nature. It is true that in these passages in chapter 21 there are clear echoes of the law-asfetter image that dominates The Elements of the Law, most notably, when Hobbes says the Liberty of a Subject, lyeth therefore only in those things, which, in regulating their actions, the Soveraign hath praetermitted: such as in the Liberty to buy and, and sell, and otherwise contract with one another 53 He also says later in the chapter that other Lyberties depend on the Silence of the Law since in cases where the Soveraign has prescribed no rule, there the Subject hath the Liberty to do, or forebeare, according to his own discretion. And therefore such Liberty is in some places more, and in some lesse; and in some times more, in other times lesse, according as they that have the Sovereaignty shall think most convenient.54 But even here the space is what we might think of as discretionary libertythe facility of judgment or choice under conditions of security and stability that is made possible by the law. It is not, to repeat, natural liberty since that consists in a space limited only by physically disabling factors. In sum, for Hobbes the point of individuals consenting to live under the authority of an all-powerful sovereign is to procure a condition of civic liberty. Civic liberty is a different kind of liberty from the natural liberty of individuals in a state of nature to do anything they consider appropriate to ensure their survival. It does not consist in a freedom from physical 19

obstacles, first, because the bonds of the law are not such obstacles.55 Second, it is not even accurate to understand civic liberty as a liberty from the law, even though Hobbes himself is tempted at times to say just this, because it is a liberty which we would not and could not have were it not for the fact that the law introduced it. Rather, law is necessary to create civic liberty; and as long as that is what the laws of a legal order do, they will create the same quality of liberty even though the space they make for the exercise of discretion by subjects will vary greatly across both time and space. Notice that what I called above discretionary liberty, the judgment by subjects about whether and how to use their civic liberty, is a direct descendant of the radical or unfettered discretion of individuals in the state of nature to decide on what actions will best ensure their survival. It is a descendant because Hobbes assumes the equality of all individuals in the state of nature to decide on what is best for themselves and, as I will sketch below, carries forward this assumption into the structure of civil society. But there are salient differences because subjects in civil society unlike individuals in the state of nature do not have to exercise their judgment about how to survive, since survival is no longer at stake. Instead, their judgments will be about how to make their lives go as well as they can on their own terms, within the framework of civic liberties established by the law. As David Gauthier has argued, the transition from the state of nature to civil society enables subjects to replace what we can think of as the natural reasoning appropriate to the state of nature with a form of public reasoning appropriate to life in a civilized society.56 The quality of civic liberty is thus more important for Hobbes than the quantity; and that a universal quality is secured, even though quantity is dictated by sovereign will, is important to seeing why for Hobbes, as I am about to explain, sovereign rule is not arbitrary in the way his critics allege. This explanation serves to show why the transition to civil 20

society makes possible a kind of public reason. Moreover, in seeing this, we can also appreciate why Hobbess legal theory, contrary to his reputation as someone who holds an austerely positivist view of law as the commands backed by sanctions of a legally unlimited sovereign, is not part of the legal positivist tradition.

THE QUALITY OF CIVIC LIBERTY

The first respect in which sovereign rule is non-arbitrary (or non-dominating) from the perspective of subjects is that for the sovereign as an artificial person to will he has to will through law. The conditions of civic liberty have to be created by, and can only be changed by, public, prospective legislation, which in words taken from Friedrich Hayeks well-known formulation of the ideal of the rule of law, makes it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances.57 By itself, this requirement goes a long way to ensuring non-arbitrary rule in one of two important senses that of rule by law. Neither the sovereign nor his agents are entitled to use coercion against legal subjects unless they can show a prior legal warrant. However, whilst this criterion for a valid exercise of sovereign authority is necessary for the rule of law to be non-arbitrary in that it requires prior legal authorization for valid exercise of such power, it cannot be sufficient. For example, the officials might be authorized to act arbitrarily, either in that they are given what lawyers call an unfettered discretion, a discretion to do as they please, or they are explicitly authorized to perform substantively arbitrary acts, that is, acts that perpetuate or create relationships of domination. Thus one eminent philosopher of law and legal positivist, Joseph Raz, has suggested that the rule of law is essentially a negative value: the law inevitably creates a danger of 21

arbitrary power, so that the rule of law is designed to minimize the danger created by the law itself.58 Raz, as I will argue below, is wrong to suppose that the rule of law is essentially a negative value, one which does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself.59 However, his suggestion about negative value does go some way to capturing one aspect of the rule of law. As I will now go on to show, the other, more positive or constitutive aspect is well captured by Hobbes. And once that aspect is revealed, we have not only a better understanding of the negative aspect, but also, and despite the fact that Hobbes is the main foil for Republicans, a grip on the way in which law connects to a conception of freedom as non-domination in a constitutive fashion. It does so by meeting a second criterion, that of legality. Razs suggestion trades on the idea that the highly centralized power of modern governments, which includes the monopoly on the legitimate use of coercion, is a kind of power that is legally constituted. Hence, law creates the kind of governmental power that preoccupies political philosophers who take as their principal concern the limits on state action, and who find in the rule of law one way of enforcing such limits. But whilst it is true that law does organize power in a way that makes it an effective instrument of those who wield power, it does not merely organize power, but also endows it with authority. Those who wield legal power claim more than the de facto ability to force compliance with their directives; they claim, de iure, the right to require compliance from those subject to their authority. It is for this reason that Hobbes in his definition of law does not refer to the coercive power of the sovereign, but to his right to obedience: law is the command not of any man to any man: but only of him, whose Command is addressed to one formerly obliged to obey him.60 Of course, the claim to authority, and moreover to legitimate authority, might serve to make legal power seem even more dangerous, which is 22

why legal positivists such as Raz are anxious to debunk any claim that law has some intrinsic legitimacy. But that those who wield legal power claim authority for their directives entails that they lose authority, and with that loss fail to exercise power, when they do not act according to law. However, as suggested above, the rule-by-law sense of non-arbitrary rule permits rules that introduce what we can think of as substantive arbitrariness into a legal order, for example, rules that require that one group of legal subjects be treated as less than equal. Hence, the requirement that the conditions of civic liberty be set by publicly enacted rules of sufficiently determinate content is necessary but not sufficient for there to be freedom under a public order of law. The proviso I added to the claim that for Hobbes the bonds of the law create civil liberty--as long as that is what the laws do--is important because the history of legal orders is littered with examples of laws that far from constituting civic liberty have either undermined or destroyed it. Most Hobbes scholars do not think that Hobbes made room for such a proviso in his legal theory. They take as evidence, amongst other things, his remarks to the effect that the sovereign is accountable only to God for his infractions of the laws of nature.61 But these scholars, including the Republicans amongst them, neglect Hobbess extensive discussion in chapter 26 of Leviathan of the interaction within civil society of the laws of nature with enacted law, an interaction over which subordinate judges preside. Moreover, this interaction shows why for Hobbes to use law to undermine civic liberty is an abuse of legal form that will not only create tensions internal to legal order, but bring into question the relationship of authority between sovereign and subject that has to be maintained for a legal order to persist.

23

As I have argued elsewhere,62 the sovereign as ultimate judge is constrained by the laws of nature, not because he owes duties to his subjects, and despite the fact that Hobbes rejects arguments for the separation of powers. Rather, the constraints come about because of the duty his subordinate judges owe to him to interpret his enacted law in the light of their understanding of the laws of nature. The sovereign as first and ultimate judge can either preclude or override such interpretations. However, that does not make the constraints cease to be such; it simply makes them overridable by very explicit words. And if the sovereign should choose to override the constraints, he risks bringing about the limit case in which the subject is entitled to treat him as no longer maintaining the essential relationship between protection and obedience, that is, as no longer a sovereign. Oakeshott, perhaps alone among the major Hobbes scholars of the last century, was sensitive to this aspect of Hobbess legal theory. Not only is Hobbes the primary inspiration for his own essay on the rule of law, but he also saw that in Hobbess legal theory the laws of nature give us the content of legal right, or ius, to which enacted law, or lex, must aspire to conform.63 The proviso is entailed in that kind of legal theory. It amounts to what I call the legality proviso--that it is not sufficient for an enactment to comply with public criteria of validity to count as law. The content of the enacted law must also be interpretable by judges in light of the laws of nature. And when the legality proviso is met, one has in place more than rule by law, government by lex, since one has the rule of law, government in accordance with principles of legality or ius. Only then, only that is, when there is a public order of law, meaning of particular laws that are interpretable in way that meets the legality proviso, will the laws that make up the order be introductive of civic liberty. Such interpretations condition the content of the laws as they apply to particular subjects, and thus affect the relationship between the subject 24

and the sovereign on the basis of the laws of nature, the set of which Hobbes calls the true and onely Morall Philosophy.64 Among the most important of Hobbess laws for understanding the content of ius are the laws that require impartial and equitable judgment and proportionality in punishment. In spirit, they overlap considerably with the list of the desiderata of the rule of law that Lon L. Fuller argued made up an inner morality of law, with the major difference being that for Hobbes a principle of equality is central to his account of the laws of nature.65 The legality proviso thus indicates that there is more to the rule of law than Hayek conveyed in his famous formulation in The Road to Serfdom: Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principle known as the Rule of Law. Stripped of all of its technicalities, this means that government in all of its actions is bound by rules fixed and announced beforehandrules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan ones individual affairs on the basis of this knowledge.66 For the formulation rules which make it possible to foresee implies that all that matters is that we have as much certainty as possible about what obstacles the laws might place in our way, so that we can avoid being surprised by them. Hence, the rule of law gets announced with great fanfare in the first line, but is reduced to the rule of rules with determinate content in the second.67 However, in other work Hayek referred to a nomocratic or law-governed conception of a free society, which he contrasted with a telocratic or purpose-governed conception.68 He credited Oakshott with this distinction and said that the great importance 25

of the abstract order of a nomocracy is that it extends the possibility of peaceful coexistence of men for their mutual benefit beyond the small group whose members have concrete common purposes, or were subject to a common superior, and that it thus made the appearance of the Great or Open Society possible.69 And it was clearly the nomocratic conception that Hayek had in mind when in The Road to Serfdom he drew a distinction between the rule of law as the rule of general and formal rules and rule by substantive rules in terms of providing signposts and commanding people which road to take.70 For the image of law-as-signpost seeks to convey what Hobbes had in mind in giving us the image of law-as-hedge. The image of law-as-fetter works best in the position of those who think that the only important sense of liberty is liberty as non-frustration. For them law is best conceived as no more than a determinate constraint on negative liberty which will be legitimate in so far as it constrains our liberty as little possible, just enough to secure peaceful social interaction, and in so far as the constraint is as determinate as possible, so that we can plan around it. The loss in liberty will be justifiable or not depending on whether the value of the goal of which the law is the instrument compensates sufficiently for the disvalue in the loss of liberty. Pettit and Berlin himself71 considered that Bentham was a central figure in this tradition of political thought. They are right to do so. But it is important to see that Bentham, and those who follow after him in his legal positivist understanding of law, either reject the legality proviso or have considerable difficulty integrating it into their theories. Bentham rejected the legality proviso for at least two reasons. First, legal order has in his view no intrinsic legitimacy. Law is no more than a mechanism for transmitting the commands of the powerful to legal subjects and whether it is legitimate or not will depend both on its content and its provenance. Because Bentham thought that good content, i.e. a 26

correct calculation of overall utility, was most likely to be achieved by having a democratically elected assembly decide on the content of the law, provenance and content were in his view linked. Second, and relatedly, because the legality proviso requires judges to seek to interpret enacted law in light of the principles that make up the legality proviso, Bentham thought that it gives to an unelected and conservative elite a resource to second guess those with legitimate authority to decide on overall utility. It is interesting that this kind of legal positivism gets support from some contemporary Republicans.72 For them, it is a sufficient condition for law to be legitimate, that is, non-dominating, that it has been enacted by a properly constituted democratic legislature. They thus reject arguments that require that the content of the law be determined in accordance with any morally-infused interpretative test such as the legality proviso, as interpreted by a staff of judges independent of the executive, because they claim that such arguments give a license to the judges to second guess democracy. The point of law, on their view, is to transmit as effectively as possible a content that has been determined outside of the legal order, which means that its legitimacy is wholly derivative, that is, dependent on whether or not it has the right content. Put differently, and somewhat paradoxically, law has to be content-independentto have a content that can be determined independently of any moral considerations and arguments--in order that it can do the job of transmitting the content that moral tests without the legal order have determined should be so transmitted.73 All the moral action, then, takes place before the enactment of the statute and legitimacy is content-dependent, dependent on the right content having been determined in the first step. For Republicans of the sort just described, right content is whatever is determined to be right by majority legislative vote.. For other Republicans, notably Pettit, not only does the 27

law have to have the right democratic provenance, but it must also be subject to judicial review for compliance with the rule of law and with an entrenched bill of rights. And, as I already indicated, Pettit does not stop there. Because for him ultimately a law is nondominating only if it tracks the subjects interests on his or her own conception of interest, as many opportunities must be given to the subject as possible to edit or contest the law.74 As one political theorist has pointed out, the profusion of checks and balances in this picture of the good polity amounts to a fulsome embrace of institutional sclerosis that will likely paralyze any attempt to enact and implement the kinds of legislative programs necessary to do away with social domination.75 Hobbes, we should note, said that his main aim in Leviathan was to find a way to pass unwounded between those that contend on one side for too great Liberty, and on the other side for too much Authority.76 In his view, the Republicans of his day embraced the first horn of this dilemma, whilst the seditious clergy--the proponents of divine right-embraced the second. We can already see the temptation in some Republicans to follow their predecessors in Pettits idea of endless contestation--that one may deny a law authority, no matter the basis for its claim to authority, simply because one disagrees with its content. In others, however, there is a tendency to grant a right to democratic legislatures comparable to the divine right that was once accorded to kings.77 Republicans thus divide into two camps, an anarchist one and a parliamentary absolutist one, each embracing one horn of the dilemma Hobbes believed a viable political theory in an age of pluralism has to resolve. Hobbess resolution of this dilemma requires that there be a moment of decision or institutional closure on any contested political issue. The moment comes when, at least for the time being, subjects accept not only that the content of the law is as those charged with ultimate authority to interpret it say, but also that they are under an obligation to obey it 28

despite their strong disagreement with its content. As I have argued, that the law must be interpretable in light of the laws of nature is a significant constraint on the content of the law, at the same time as it is a basis for subjects to accept that they are under an obligation to obey the law. Moreover, that basis is such because the constraint serves an ideal of nondomination. Hobbess ideal is, however, for good reason less exacting an ideal than that adopted by the anarchistic strain within Republicanism. As Lars Vinx has pointed out, it is plausible to infer from Hobbess arguments in Leviathan a fear that the pursuit of a thick and demanding ideal of non-domination that requires endless contestability would turn out to be incompatible with the existence of well-functioning political institutions capable of securing public order and social co-ordination.78 It is also, however, more exacting, at least at the low altitude of institutional requirements, than that presupposed by the parliamentary absolutist camp in Republicanism, because the legality proviso requires that any enactment be interpretable in light of the laws of nature. If the enactment is so interpretable, then the subject has reason to comply with it, even if he or she disagrees with its content. That reason is based on the fact that the law is legal, that is, it meets the requirements of the rule of law or legality. That the law has a democratic provenance is another, perhaps stronger reason for compliance. There is at the least an elective affinity between the two kinds of reasons, democracy and the rule of law, since they both take the point of legal order to be to construct a society in which individuals may interact with each other in conditions of security and stability that enable each to live in accordance with his or her sense of the good life. It might even be correct to argue that freedom under a public order of law cannot be secured in the absence of democratic controls on government.79 For example, an order that 29

was put in place by a benevolent despot would remain in place only if the despot so willed, thus making the freedom enjoyed by legal subjects under that order dependent on the despots continued benevolence, which is anathema to a conception of freedom as nondomination. In addition, one can argue that questions about the quantity of civic liberty are best worked out in the forum of democratic politics, since that will increase the chances that the answers will track the interests of subjects as they themselves understand their interests. Indeed, Hobbess own hostility to democracy has less to do with the spirit of his account of sovereignty than with his historically contingent worry that the political factionalism of civil war can be ignited by the open political contests of democratic politics. If one abstracts from that worry, democracy will seem, as it does to many Republicans, as the natural companion to the requirement that the sovereign rule by law and in accordance with the rule of law. After all, the major political advance of Leviathan resides in the idea that the authority of the sovereign is the authority not of a natural person, but of the artificial person of the state who speaks to subjects through law, that is, through general, public laws that are interpretable in light of the laws of nature. The great bargain that individuals make in the state of nature is to swop their subjection to the potential for uncontrolled interference by any other individual for the controls inherent in legal government. At times Hobbes talks as though the swop is beneficial only because it is better to be subject to the whims of a single natural individual than to the whims of everyone, notably, when he says that one might object that the Condition of Subjects is very miserable; as being obnoxious to the lusts, and other irregular passions of him, or them that have so unlimited a Power in their hands. 80 However, his answer to the objection is an implicit rejection of the terms in which it is stated. It is that no matter the character of a government, democratic or monarchical, subjection to it has to be better than the awfulness of the state 30

of naturethe dissolute condition of masterlesse mennot because there is now one natural master, but because the master is a sovereign who governs by law with the coercive power to enforce the law centralized in his hands.81 Hobbess inquiry into the character of rule by the single artificial person of the state goes a long way to showing why such rule should be considered legitimate by those subject to it because it will be non-dominating. He is not disabled in doing so by the fact that on his view of freedom only actual interferences are normatively relevant. That freedom as nonfrustration is so precarious in the state of nature provides everyone with a reason to exit that state, but the cure for that precariousness is not premised on freedom as non-frustration. Rather, it is premised on securing equal civic liberty under an order of public law. Moreover, whilst the particular laws that make up this order will be fetters on negative liberty in Berlins sense, they are incapable of fettering natural liberty in Hobbess sense, and can at most make it more probable through their sanctioning mechanisms that subjects who do not understand why it is rational to obey the law because of its intrinsic legitimacy will choose to obey out of fear. However, subjects who understand why it is rational to obey the law because of its intrinsic legitimacy have it because they grasp that a public order of law is introductive of civic liberty, and so cannot be counted as an interference with that kind of liberty. As Hobbes says, to clamour for freedom from such laws is to make at least three mistakes: first, a category mistake in that one is demanding natural liberty when in issue is civic liberty; second, a logical mistake since one in fact has natural liberty in a civil society; third, a moral and rational mistake, since the state one is clamouring for is one where the only liberty one has is natural liberty, but that is a not worth having because one is in the dissolute condition of masterlesse men.82 31

The contours of such liberty, what it takes to ensure the quality of civic liberty, can, then, be worked out apart from the design of the democratic political order.83 And it is best that the two tasks are not muddled, or worse collapsed as happens in the case of the absolutist strain within Republicanism or the most libertarian strains within liberalism. In the former case, the rule of law is reduced to the rule by law of the political elite or alliance of elites that happens to command a majority in the legislature. In the latter, democracy is reduced to the rule of law, since democracy is advocated only to the extent that it seems the best, more accurately, the least bad, means of ensuring that the rule of law is secured, where by the rule of law is meant not only that a certain quality of liberty is secured, but the greatest possible quantity consistent with maintaining order and stability.

CONCLUSION

We saw at the outset that Berlin set great store on the ability to realize the relative validity of ones convictions at the same time as being ready to stand for them unflinchingly because that ability is what distinguishes a civilized man from a barbarian.84 This somewhat paradoxical claim might seem some fifty years on uncomfortably paired with a distinction between civilized men and barbarians.85 But the tragedy of liberty, the topic of this collection of essays, has plausibly to do with our sense these days of the fragility and contingency of a particular form of society that makes possible what Hobbes thought of as civic liberty. As I have argued, the conception of liberty at stake here is not a residue of the liberty of the state of nature, but is freedom under a public order of law. It is in large part produced by the particular enactments of the sovereign, but these have to be part of the public order, a 32

requirement that imposes the discipline of legality on the enactments. In such an order, the individual has to understand that his or her own convictions are relative in the sense that the law supplies what Hobbes called the publique Conscience, by which [the subject] hath already undertaken to be guided.86 That is, individuals must subordinate or relativize their sense of right and wrong to the public sense, at least in so far as they conform in their actions to that sense, even whilst they maintain their own convictions. But that subordination is subject to the limit case, in which the natural individuals who people the office of sovereignty step beyond the limits of their authority and those subject to the law are entitled to conclude that the law has lost its authority because it is no longer doing the job of constituting their equal freedom. The Republican revival is of immense value in an understanding of these issues in that it focuses our attention on the major mark of a civilized society as one in which individual interaction is untainted by domination. But, or so I have argued, they should see that perhaps their most helpful ally in trying to understand the design of such a society is the figure they usually take as their enemy number one, Thomas Hobbes and the tradition of modern thought about the discipline of legality which he founded.87 Hobbes is not the only figure in the history of political thought who can prove helpful in this regard, in part because a suspicion of or even hostility to democratic controls creates an incentive to inquire more deeply into the controls of legality. Consider that Hayek is one of the figures in the liberal tradition most closely associated with the political ideology of libertarianism and thus with hostility to the welfare state, most famously expressed in his The Road to Serfdom.88 However, in Republicanism, Pettit is willing to recognize, albeit in footnotes, that even Hayeks conception of freedom under a system of public laws might not look at the low 33

altitude of institutional requirements that different from freedom as non-domination.89 Here I have argued that this coincidence comes about not because liberals are tempted to adopt institutional forms that are premised on a conception of freedom as non-domination despite the fact that they espouse some version of negative liberty that cannot support such forms. Rather, they adopt those forms precisely because on closer inspection it appears that they share the basic idea behind the Republican ideal of non-domination--that above all it is important that individuals have secured for them the ability to exercise what I called above their discretionary liberty, their freedom to decide for themselves how to live independently of otherss arbitrary interferences, both actual and potential. Thus, Hayek in his later work placed his own conception of the rule of law firmly within the tradition of thought embraced by Republicans, when he claimed Cicero as the main authority for modern liberalism because he had provided many of the most effective formulations of freedom under law: To him is due the conception of general rules or leges legum, which govern legislation, the conception that we obey the law in order to be free, and the conception that the judge ought to be merely the mouth through which the law speaks. No other author shows more clearly that during the classical period of Roman law it was fully understood that there is no conflict between law and freedom and that freedom is dependent upon certain attributes of the law, its generality and certainty, and the restrictions it places on the discretion of authority.90 Moreover, Hayek relied on exactly the contrast between slavery and freedom so central to Republican thought. His The Constitution of Liberty is presented as an exercise in the recovery of the original meaning of freedom. Man, or at least European man, enters history divided into free and unfree; and this 34

distinction had a very definite meaning. The freedom of the free may have differed widely, but only in the degree of independence which the slave did not possess at all. It meant always the possibility of a persons acting according to his own decisions and plans, in contrast to the position of one who was irrevocably subject to the will of another, who by arbitrary decision could coerce him to act or not to act in specific ways. The time-honored phrase by which this freedom has often been described is therefore independence of the arbitrary will of another. 91 Here Hayek emphasized, more important than the fact that this was the original meaning of freedom, is that it describes a state which is desirable for reasons different from those that which make us desire other things called freedom, for example, freedoms from and freedoms to.92 Finally, Hayek is clear that whilst there is an important question about how many courses of action are open to a person, this is a different question from the one that should be the primary focus of political and legal philosophy. This is the question of how far in acting an individual from that of how far in acting he can follow his own plans and intentions, to what extent the pattern of his conduct is of his own design, directed towards ends for which he has been persistently striving rather than towards necessities created by others in order to make him do what they want. Whether he is free or not does not depend on the range of choice but on whether he can expect to shape his course of action in accordance with his present intentions, or whether somebody else has power so to manipulate the conditions as to make him act according to that persons will rather than his own. Freedom thus presupposes that the individual has some assured private sphere, that there is some set of circumstances in his environment with which others cannot interfere. 35

For Hayek, then, as we saw for Hobbes, the kind of liberty produced by a public order of law has the following characteristics: (a) it is different in kind from negative and positive liberty; (b) it is the kind that should be the primary focus of political and legal philosophy because of the desirability of the social and political condition in which it is secured; (c) its value depends not on its extent or quantity but on its quality; (d) that quality is affected negatively by the capacity for arbitrary interference as well as by actual arbitrary interferences. Once that quality of civic or legal liberty is attained, there are further tasks for political philosophy: for example, whether and to what extent there should be a welfare state. It is significant that Pettit finds himself in Republicanism having to distinguish himself from Hayek, considered one of the leading proponents of negative-liberty liberalism of the twentieth century, by pointing out that his own version of freedom as non-domination is as much concerned with the potential for social arbitrarinessfor example, domination in the workplace and the family--as it is with the potential for political arbitrariness.93 However, it is not that clear that Hayek was unconcerned with social domination. Rather, he was worried about the potential for domination in giving an extensive role to the state to use law to combat the kinds of social domination to which Pettit points. That is, attempts at extensive state regulation necessarily multiply the amount of state interference in our lives, and thus the occasions when we might find ourselves subject to the coercive and arbitrary judgment of some state official. That concern becomes heightened when we notice that the main influence in complex legislative regimes designed to combat social domination is quite likely

36

to be that of powerful elites, which might be what Hobbes had in mind when he said. As we saw above, that bad laws are but traps for money. Put differently, the use of law as an instrument to combat social domination carries inherent risks of creating new forms of social domination. And in this regard it is worth noting that Hayek shifted from a position totally opposed to the welfare state at the time of The Road to Serfdom to one that recognized that the problem was not about state interference as such, but about whether state interference can be made subject to the discipline of legality. That question remains as pressing today as we consider contemporary manifestations of threats to liberty that highlight the fragility and contingency of a particular form of society that makes possible what Hobbes thought of as civic liberty. And the lesson of my chapter is that there is much to be learned from those thinkers in the Western tradition who, perhaps because of their suspicion of, even hostility to democracy, focused their attention on the way in which legality might help to secure freedom as non-domination.

Professor of Law and Philosophy, Toronto. For discussion of this paper, I thank the

participants in the Tragedy of Liberty conference at the Central European as well as the audience at a Department of Philosophy Workshop at the University of Vienna. My greatest thanks are due to Ariel Zylberman, whose comments on a revised draft of that paper led to rather radical changes. 37

Isaiah Berlin, Two Concepts of Liberty, in Berlin, Four Essays on Liberty (Oxford: Oxford

University Press, 1969) 118.


3

Ibid, 123, note 2. Berlin, Two Concepts of Liberty, 122, note 2. I believe the quote to come from Joseph Schumpeter. Berlin, Two Concepts of Liberty, 172. FA Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994). Ibid, 80. Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University

Press, 1999).
10

Ibid, 50. Ibid, 31-5. See Frank Lovett and Philip Pettit, Neorepublicanism: A Normative and Institutional

11

12

Research Program (2009) 12 American Review of Political Science 11, 16.


13

Ibid. Berlin, Two Concepts of Liberty, 129. For the idea of alien control, see Philip Pettit, Republican Freedoms: Three Axioms,

14

15

Four Theorems in Ccile Laborde and John Maynor, eds, Republicanism and Political Theory (Oxford: Blackwell, 2008) 102.
16

Pettit, Republicanism, 292-97. Philip Pettit, The Instability of Freedom as Noninterference: The Case of Isaiah Berlin,

17

(2011) 121 Ethics 693. In the article, terms such as non-frustration are not hyphenated, but I will use hyphens for the sake of uniformity. 38

18

Berlin, Four Essays on Liberty, xlviii and for the implicit break, see Two Concepts of

Liberty, 127, as set out by Pettit, Instability, 698.


19

Ibid. Pettit, Instability, 704-5. Ibid, 706. Ibid, 709. Ibid, 712, quoting from Berlin, Two Concepts of Liberty. Pettit, Instability, 712. Berlin, Two Concepts of Liberty, 134. Ibid. Philip Pettit, On the Peoples Terms: A Republican Theory and Model of Democracy (Cambridge

20

21

22

23

24

25

26

27

University Press, forthcoming).


28

For a distinguished example of this kind of criticism, see Charles Larmore, The Meanings

of Political Freedom in Larmore, The Autonomy of Morality (Cambridge: Cambridge University Press, 2008) 168.
29

I owe this term to Ian Shapiro, On Non-Domination, (2012) 62 University of Toronto Law

Journal 293.
30

Note XX above. Pettit, Republicanism, 41-5, and Philip Pettit, Liberty and Leviathan, (2005) 4 Politics,

31

Philosophy, & Economics 131; Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008).
32

Hobbes, Leviathan, 128. For the full quote, see the text below. Pettit, Instability, 696. 39

33

34

Ibid, 711-12. Skinner, Hobbes and Republican Liberty, 160-61. Ibid, 151-77. Skinner says of the first sense that it amounts to the most outrageous

35

36

moment of effrontery in the whole of Leviathan; ibid, 151.


37

Thomas Hobbes, The Elements of Law Natural and Politic (Oxford: Oxford University Press,

1994), in De Corpore Politico, 173-4.


38

Ibid. See Pettit, Liberty and Leviathan, Thomas Hobbes, Leviathan (Cambridge: Cambridge University Press, 1997, Richard Tuck,

39

40

ed.), 146. See Skinner, Hobbes and Republican Liberty, chapter 5.


41

Note XX above. Hobbes, Leviathan, 88-9. Ibid, 231. Ibid, 239. Ibid, 239-40. See Scott Shapiro, Legality (Cambridge, Mass.: Harvard University Press, 2011). Michael Oakeshott, The Rule of Law in Oakeshott, On History and Other Essays

42

43

44

45

46

47

(Indianapolis: Liberty Fund, 1999) 129, 148.


48

In a draft companion paper, Liberty and Legal Form, I argue that this kind of law is the

basic legal form, underpinning both kinds of law identified by HLA Hart--duty-imposing and power-conferring rules. That is, both these kinds of law, albeit in different ways, instantiate the legal form that introduces a particular kind of liberty.

40

49

For a compelling critique of Pettits analysis of Hobbes on liberty as well as an argument in

support of the claim about exegesis, see Lars Vinx, Hobbes on Civic Liberty and the Rule of Law, in David Dyzenhaus and Thomas Poole, eds., Hobbes and the Law (Cambridge: Cambridge University Press, 2012) 145.
50

Hobbes, Leviathan, 147. Ibid. Ibid, 149. Ibid, 148. Ibid, 152. Hobbes says the bonds of the law are in their own nature but weak though he adds that

51

52

53

54

55

they may neverthelesse be made to hold, by the danger, though not by the difficulty of breaking them. Ibid, 147.
56

David Gauthier, Thomas Hobbes and the Contractarian Theory of Law (1990) 16

Canadian Journal of Philosophy 5.


57

Hayek, The Road to Serfdom, 80. Joseph Raz, The Rule of Law and its Virtue in Raz, The Authority of Law: Essays on Law and

58

Morality (Oxford: Clarendon Press, 1983) 210, 224.


59

Ibid. Hobbes, Leviathan, 183. Raz has extensively analysed this feature of law, but his analysis is

60

constrained by his positivistic commitmentssee especially, Joseph Raz, Authority, Law, and Morality in Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994) 194; and for incisive critique, see Stephen Darwall, Authority and Reasons: Exclusionary and Second Personal (2010) 120 Ethics 257 and 41

Authority and Second Personal Reasons for Acting, in David Sobel and Steven Wall, eds., Reasons for Action (Cambridge: Cambridge University Press, 2009) 135.
61

For example, immediately after Hobbess claim that the sovereign is bound by the law of

nature to make good law; Leviathan, 231.


62

Most recently, in Hobbes on the Authority of Law, in Dyzenhaus and Poole, Hobbes and

the Law, 186.


63

As he put it, the laws of nature should not be seen as independent principles which, if

followed by legislators, would endow their laws with a quality of justice; they are no more than an analytic break down of the intrinsic character of law, the jus inherent in genuine law which distinguishes it from a command addressed to an assignable agent or a managerial instruction concerned with the promotion of interests; Oakeshott, The Rule of Law, 173.
64

Hobbes, Leviathan, 110. Fuller discussed eight such desiderata: generality, promulgation, non-retroactivity, clarity,

65

non-contradiction, possibility of compliance, constancy through time, and, the one which he took to be the most complex, congruence between official action and declared rule. See Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1969, revised edition), chapter 2. He argued that a legal system that fails completely to meet one of these, or fails substantially to meet several, would not be a legal system. It would not qualify as government under lawas government subject to the rule of law.

66

Ibid, 80. Hayek thus made himself an easier target for Razs critique in The Rule of Law and Its

67

Virtue, an essay in which Hayek and Fuller are Razs main foils. 42

68

FA Hayek, The Principles of a Liberal Social Order, in Hayek, Studies in Philosophy, Politics

and Economics (New York: Simon and Schuster, 1969), 160, at 163.
69

Ibid. His emphasis. Note that the book is dedicated to Karl Popper. In a review article of a

collection of Poppers essays, Katrina Forrester traces Poppers intellectual journey from a position of opposition to communism but not to social democracy to an unrelenting libertarianismToqueville anticipated me, (2012) 34 London Review of Books, 26 April 2012, 42.
70

Hayek, The Road to Serfdom, 82. See note XX above. See Richard Bellamy, Political Constitutionalism and the Human Rights Act (2011) 9

71

72

International Journal of Constitutional Law 86. See further, Samantha Besson and Jos Luis Mart, Law and Republicanism: Mapping the Issues in Besson and Mart, eds., Legal Republicanism (Oxford: Oxford University Press, 2009), 3, at 32-33: legal republicanism ought to encompass a positivist theory of law because it cannot rely on the existence of a natural, prepolitical validity.
73

See Raz, Authority, Law, and Morality, 202-4, for an explanation of why a positivistic

account of authority requires the notion of content-independent reasons.


74

Pettit is more ambiguous on this point than I allow in the text, especially in On the Peoples

Terms: A Republican Theory and Model of Democracy. He seems undecided whether interests can be determined pre-institutionally in accordance with some impartial, third personal test, or whether they have to be determined institutionally, in the course of individual interaction, that is, secondpersonally. Perhaps it is his view is that the interest in not being dominated is determined on the first method, and everything else falls out of the second. As Ariel 43

Zylberman has pointed out to me, there is a problem for consequentialist Republicans like Pettit if what ultimately matters is a social condition of non-domination. For it is not then immediately clear that the rule of law is a necessary means to attain the desired Republican outcome. In my view, which I will not defend here, Hobbess version of non-domination whilst perhaps also consequentialist in that non-domination is the goal of civil order, is not vulnerable to the same form of critique.
75

Shapiro, On Non-Domination, 331. Hobbes, Leviathan, Dedication, 3. I discuss these ideas further in How Hobbes Met The Hobbes Challenge, (2009) 72

76

77

Modern Law Review 488.


78

Vinx, Hobbes on Civic Liberty and the Rule of Law, 163-4. This is the argument of much of Pettits new book, On the Peoples Terms: A Republican

79

Theory and Model of Democracy.


80

Hobbes, Leviathan, 128. Ibid, 128. Ibid, 147-8. In fact, this is precisely how Pettit proceeds in On the Peoples Terms: A Republican Theory and

81

82

83

Model of Democracy, as the requirements of social justice are set out in chapter two, and the analysis of political legitimacy begins in chapter 3.
84

See note XX above. Here we should note Steven Pinkers intriguing argument in The Better Angels of Our Nature:

85

Why Violence has Declined (New York: Viking, 2011), in which he takes Hobbes along with Kant to be the main philosophical influence in the civilizing process that leads to the decline 44

of violence that is the theme of his book. On Pinkers view, Hobbes explains more the civilizing process within states, whilst Kant explains more the process between states.

86

Hobbes, Leviathan, 223. Perhaps the best exploration of these issues in the twentieth century is Hans Kelsen, Vom

87

Wesen und Wert der Demokratie (Aalen: Scientia Verlag, 1981).


88

FA Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994). Pettit, Republicanism, note 9 at 50, note 2 at 89. F A Hayek, The Constitution of Liberty (London: Routledge & Kegan Paul, 1960), 166-7. Ibid, 12. Ibid. Pettit, Republicanism, 89-90.

89

90

91

92

93

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