The Long Arc of Legality-轻识

The Long Arc of Legality

I am working on a book titled The Long Arc of Legality, which traces a trajectory in modern thought about the role of law in constituting a legitimate political order, from Thomas Hobbes to this day. It seeks to vindicate a claim that will seem part and parcel of Hobbes's general authoritarian political philosophy and deeply repugnant to a liberal democratic sensibility - that law provides us with a "public conscience". For the image of law as our public conscience requires us to take not only our laws to be legislated by our sovereign, but also our moral values. The public or enacted laws of a civil society are the repository of the society's values that the individuals in that society must take to justify state coercion.

I shall argue that Hobbes's account of legality shows why the idea of law as a public conscience should be accepted, as long as we are prepared to adopt a certain kind of pragmatist view of moral inquiry. Our compulsory public morality - the morality that we feel is settled and important enough that it be put into law - is simply a subset of the set of judgments that have survived the tribunal of experience and inquiry.

My claim is that Hobbes's philosophy of law can help to show why that idea is plausible, as it shows us how fundamental principles of legality shape our inquiry. Our confidence in these compulsory moral judgments is in part built upon the principles contained in the institutional make-up of law. I have in mind, first, the principle that requires that individuals have the right to ask an independent official for reasons why the law applies to them in a way that addresses them as responsible agents, and second, the principles that underpin legal mechanisms for changing law in a way that makes the judgments embedded in the law revisable in light of further experience. It is these kinds of principle that make it possible both for those who find themselves relegated by the law to second-class status to ask a judge, "But, how can that be law for me?", and for an internal legal imperative to kick in that requires reform.

David Dyzenhaus is University Professor of Law and Philosophy, University of Toronto, Canada. He works on legality under stress, an interest that he developed as a law student in apartheid South Africa. As one of the leading theorists of the rule of law, his work both reshapes philosophy of law and connects its most abstract concerns to the practical dilemmas human rights lawye...