Evan Fox-Decent, ‘Unseating Unilateralism’

Two sets of literature dominate academic discussion of the rule of law. The first is the Fuller/Hart/Raz literature of legal philosophy that focuses on Fuller’s internal morality of law and the framework it supplies for the exercise of agency. The second is the public law literature descended from A.V. Dicey that celebrates the rule of law as an equity-working bulwark against arbitrary executive power. Long before these literatures developed a life of their own, however, Thomas Hobbes articulated a conception of legal order that featured core elements of both. This, I argue, is the public law side of Hobbes’s account of legal order.

But Hobbes’s legal order has a private law side, too. Indeed, he begins his account with private law because it allows him to express most vividly the fundamental organizing idea that underlies the institutions of both public and private law: the prohibition on unilateralism. This principle affirms that no private party is entitled to dictate terms or enforce justice claims against another. Public authorities alone are entitled to do so. In Hobbes, I suggest, the prohibition on unilateralism is manifested in various laws of nature that inform both the structure and norms of legal institutions. The prohibition on unilateralism thereby explains the public as well as private law side of Hobbes’s legal theory, and thus reveals public law and private law as a unity.

In the final section I consider a challenge from Locke to Hobbes’s legal theory; in particular, Locke’s assertion that individuals in the state of nature possess a private right to punish wrongdoers. In civil society individuals no longer have this right, but only because they have transferred it to the state so as to leave the state of nature. So under Locke, the prohibition on unilateralism loses its distinctive status as a necessarily public and constitutive organizing principle of law. I sketch a reply on Hobbes’s behalf. I also attempt to show how Hobbes can accommodate the intuitions on which neo-Lockeans rely to motivate support for a private right of punishment.

Fox-Decent, Evan, Unseating Unilateralism (November 6, 2012).

First posted 2012-11-19 07:34:01

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