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A Commentary on Ristroph’s “Sovereignty and Subversion”

Alice Ristroph’s article offers both a first-order characterization of Hobbes’s accounts of law and punishment, and a second-order characterization of what Hobbes was providing us in those accounts and what, correspondingly, counts as appropriate or inappropriate criticism of those accounts. I am almost entirely in agreement with her first-order characterization of Hobbes’s political and legal theory: She is correct in rejecting the assimilation of Hobbes’s legal theory to Austin’s, and in noting the strands of Hobbes’s view that disqualify him from counting as any sort of legal positivist. And I agree, on the whole, with her characterization of Hobbes’s account of justified punishment, and that this account has its attractions yet produces some puzzles which Hobbes does not fully resolve.

My disagreements are with her second-order characterization of Hobbes’s legal theory. I want to discuss two related areas of disagreement. The first disagreement concerns whether we should assess Hobbes’s account of law in terms of the standards of general descriptive jurisprudence: Ristroph denies that it should be; I disagree. The second concerns whether we should take Hobbes’s treatment of the political as explanatorily prior to the legal to show that Hobbes was in some way apart from the natural law tradition in jurisprudence: Ristroph affirms this; I disagree.

Redrawing the Dividing Lines Between Natural Law and Positivism(s): A Commentary on Priel’s “Toward Classical Legal Positivism”

Anglo-American jurisprudence, before it insulated itself in conceptual analysis and defined itself in opposition to broader questions, was properly a “sociable science,” to use Professor Postema’s phrase from his symposium article. And, in part due to the exemplars of history, so it may become again. By drawing on Bentham and Hobbes, Professor Dan Priel’s Toward Classical Positivism points forward toward more fruitful methods of jurisprudence while illuminating the recent history and current state of inquiry. His article demonstrates the virtues and promise of a more catholic approach to jurisprudence. It also raises challenging questions about the direction to take this rediscovered path, and I am not sure I always agree with his suggested answers. Any misgivings I have about Priel’s particular approach, however, do not diminish my appreciation; I find even the points of disagreement to be live and meaningful, and that itself is refreshing.

What Can The History of Jurisprudence Do For Jurisprudence? A Commentary on Schauer’s “The Path-Dependence of Legal Positivism”

Professor Frederick Schauer employs the views of historically influential legal positivists instrumentally in this way. He suggests that some of their now-neglected views warrant reconsideration of the narrow focus of contemporary positivism: “These commitments [of contemporary positivism] may serve their purposes, but if they have also caused our understanding of the phenomenon of law to be truncated then the benefits may not be worth the costs.” He therefore relies on the stronger of the instrumental uses of jurisprudential history: history as a goad to reflection on reigning jurisprudential assumptions. According to Schauer, in explicating and defending legal positivism, legal theorists over time retained and emphasized certain views of some historically influential legal positivists and ignored their views about law reform, adjudication, and the place of sanctions in an account of law. These ignored views make contemporary legal positivism more restricted than its classical predecessors, Schauer suggests, both in what it takes to be at the core of positivism and positivism’s implications for other parts of legal theory. Schauer believes that the ignored positions—“paths not taken”—can help inform current legal theory generally.

I am less optimistic about the use of the history of jurisprudence for this purpose. In the case of legal positivism and other positions taken within legal theory, the history of paths not taken is unlikely to change the minds of legal theorists. Legal theorists likely are moved by theoretical considerations and arguments, not exegetical insights into the works of their predecessors. The character of legal theory, I will suggest, is likely to be the result of argument untied to the consideration of the history of jurisprudence or the revelation of ignored jurisprudential positions.

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