Hakimi: Exorcising Hobbes's Ghost: A Future for Constitutional and International Law

Monica Hakimi (Columbia Univ. - Law) has posted Exorcising Hobbes's Ghost: A Future for Constitutional and International Law (Michigan Law Review, forthcoming). Here's the abstract:

Daryl Levinson seeks to exorcise Thomas Hobbes's ghost from U.S. constitutional law. Over three centuries ago, Hobbes defined law as the command of the sovereign, thus denying that law could ever be directed at the sovereign. Levinson argues that the development of international and constitutional law since then proves that Hobbes's conception of law is erroneous. And yet, Levinson says, this conception continues to infect how many analysts approach the craft. His self-described project in Law for Leviathan: Constitutional Law, International Law, and the State is "to bring together international and constitutional law to develop a unified theory of law for states" that is free from Hobbes's errors.

I am fully on board with Levinson's project. I argue in this Essay, however, that Levinson does not cut deeply enough. He himself employs a conception of law that is fundamentally Hobbesian in nature--and marred by many of the same errors. I then offer a conceptual corrective to break completely from Hobbes with three clarifying effects. First, my corrective illuminates how law works unlike Hobbes imagined. Second, it presents a metric for identifying when law is working well or poorly (and for whom). Third, it brings into sharper focus the urgency of finally exorcising Hobbes's ghost. U.S. constitutional and international law are both now being radically transformed, creating a once-in-a generation opportunity to reconstitute their basic foundations. As long as Hobbes's ghost retains its stranglehold on our collective legal and political imagination, we risk not only squandering the opportunity to improve our lot but also stumbling confusedly into a world that is considerably more oppressive than the one that we are leaving behind.