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.