Hobbes and the Internal Point of View

With the introduction, by John Austin, of the command theory of law,1 a certain distinction among theories of law entered the jurisprudential landscape: the distinction between theories that seek to characterize obedience to law in terms of external motivations, such as sanctions for noncompliance, and those that characterize obedience to law in terms of internal motivations, such as a moral commitment or other sense of duty. In the former category we might place not only Austin’s command theory, but Oliver Wendell Holmes’s bad man “theory” of law, as well as what is thought to be the granddaddy of them all, Thomas Hobbes’s authoritarian approach to law and civil authority. In the latter category we might place natural law theories, as well as positivistic theories like H.L.A. Hart’s that ground the duty to obey the law in norms, or at least in normative practices that treat law as reason-giving. In this paper I shall argue that Hobbes has only been situated in the former category through a mistaken reading of his theory, and that while it may be true that Austin, and Holmes after him, acquired many elements of their own theories from his, the “external” or sanction-based accounts they developed do not owe as much to Hobbes’s own thinking about law as the authors purporting to follow him supposed. In particular, while Hobbes’s account of law differs significantly and in many crucial respects from Hart’s, the central advance of Hart’s theory, namely combining a broadly positivistic approach with the idea that law has an internal aspect, was already present in Hobbes. It is not that I think Hobbes is uncontroversially characterized as a positivist—indeed I have argued elsewhere that he is not. It is rather that the positivistic elements of his account (those elements he shared, for example, with Austin) did not preclude his recognition of true legal duty with its attendant internal aspect. The point may seem an arcane one for those more interested in jurisprudential debates about the nature of law than in intellectual history. But the Hobbesian theory of law, if understood in all of its complexity, has