The Ambiguity of Force

The author argues that Schauer's understanding of appropriate empiricism and relatedly what he wishes to take from the positivist classics might have an even more reductive impact on legal philosophical inquiry than the legal positivist quest (which Schauer rejects) to confine such inquiry to a search for necessary and sufficient conditions. The argument is based on the example of the legal order of the Arab territories occupied by Israel. In the author's view, this legal order is very close to what Schauer regards as the normal case of a properly functioning legal order and in its closeness one can discern the flaws in his argument.     

Hobbes and the Legitimacy of Law

Legal positivism dominates in the debate between it and naturallaw, but close attention to the work of Thomas Hobbes – the``founder' of the positivist tradition – reveals a version ofanti-positivism with the potential to change the contours of thatdebate. Hobbes's account of law ties law to legitimacy throughthe legal constraints of the rule of law. Legal order isessential to maintaining the order of civil society; and theinstitutions of legal order are structured in such a way thatgovernment in accordance with the rule of law is intrinsicallylegitimate.I focus on Hobbes's neglected catalogue of the laws of nature.Only the first group gets much attention. Its function is tofacilitate exit from the state of nature, an exit which Hobbesseems to make impossible. The second group sets out the moralpsychology of both legislators and subjects necessary to sustaina properly functioning legal order. The third sets out the formalinstitutional requirements of such an order. The second and thirdgroups show Hobbes not concerned with solving an insolubleproblem of exit from the state of nature but with theconstruction of legitimate order. Because a sovereign is bydefinition one who governs through law, Hobbes's absolutism isconstrained. Government in accordance with the rule of law isgovernment subject to the moral constraints of the institutionsof legal order.