David Dyzenhaus

The Public Conscience of the Law from Hobbes to Hart

  • Abstract

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Keywords: Conscience; Positivism; Legality; Sovereignty; Authority; Natural Law.

Hobbes suggests in "Leviathan" that «the law is the publique Conscience, by which [an individual] hath already undertaken to be guided». He seems then to be a moral positivist - enacted law is the repository of the society's values that individuals must take to justify state coercion. Hobbes is also reputed to be a legal positivist who held that law is the commands of a legally unlimited sovereign. I argue that Hobbes is not a legal positivist because the sovereign is subject to the discipline of legality. The sovereign's laws have to be both validly enacted and interpretable in light of the laws of nature. This subjection shows that Hobbes is also not a moral positivist. I argue further that HLA Hart was committed to much the same view.

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