McGill University - Faculty of Law
June 6, 2013
'Private Law and the Rule of Law', Lisa Austin & Dennis Klimchuk eds (OUP, 2014) (Forthcoming).
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 AV 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 dimension of Hobbes’s account of legal order.
But Hobbes’s legal order has a private law dimension, 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 unilaterally against another. Public authorities alone are entitled to adjudicate and enforce justice claims. 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 thus lies at the heart of the public as well as private law dimension of Hobbes’s legal theory, and reveals public law and private law as a unity.
In the final section I consider a challenge from Locke to Hobbes’s legal theory. Locke denies the prohibition on unilateralism, asserting instead that individuals in the state of nature possess a private and natural right to punish wrongdoers. According to Locke, in civil society individuals no longer have this right of punishment, but only because they have transferred it to the state so as to leave the state of nature. In other words, but for civil society, individuals would be entitled to enforce justice claims unilaterally. Neo-Lockeans, such as Nozick and Simmons, make similar claims, trading on the intuition that a private party can justly punish a deserving wrongdoer if the state is unavailable or complicit in the wrongdoing. I sketch a reply to Locke and his successors on Hobbes’s behalf.
Number of Pages in PDF File: 46
Keywords: unilateralism, Hobbes, rule of law, laws of nature, Locke, authority, arbitrationAccepted Paper Series
Date posted: November 15, 2012 ; Last revised: November 4, 2013
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