Hobbes's Constitutional Theory

Abstract

This essay closely examines Hobbes’ underexplored discussion of legal theory in the Leviathan, and argues that Hobbes’ account of rule through law explains why he considered that sovereign power should be regarded as legitimate by the sovereign’s subjects. Whereas modern commentators on Leviathan have generally insisted on the supremacy of positive law, the author suggests that the more compelling interpretation of Hobbes’ text supports a natural law reading, where one's obligation to the sovereign is based not solely on his power to enact laws but also on his compliance with the laws of nature. Hobbes’ discussions of law reveal his constitutional theory, a theory of fundamental principles of legality that does not fit neatly into our contemporary categories of legal positivism and natural law. The author shows that, for Hobbes, political order is legal order — an order created by a sovereign who rules through law, but which necessarily complies with the laws of nature.