Freedom Under an Order of Public Law: From Hobbes Through Hayek to Republicanism

Abstract

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. In my view, neoRepublicans have done political 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. However, 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. I argue that 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.

Keywords: Hobbes, Hayek, Republicanism, liberty, freedom