Abstract
The mark of ‘the political’, according to Bernard Williams, lies in a society finding an answer to the ‘first political question’—the ‘Hobbesian’ question of how to secure ‘order, protection, safety, trust, and the conditions of cooperation’. It is first because ‘solving it is the condition of solving, indeed posing, any others’. Williams also argues that a political order differs from an ‘unmediated coercive’ order in that it seeks to satisfy the ‘Basic Legitimation Demand’ (BLD) that every legitimate state must satisfy if it is to show that it wields authority over those subject to its rule. To meet that demand the state ‘has to be able to offer a justification of its power to each subject whom by its own lights it can rightfully coerce under its laws and institutions’. My paper argues that this set of issues is the central concern of legal theory and that, suprisingly, it is resources in the legal positivist theories of Hans Kelsen, H. L. A. Hart and Joseph Raz that can help us to see how a political order has to be constituted as a legal order before it becomes capable of answering the BLD. The argument is that the idea of acceptance in positivist legal theory imports the main components of the social contract tradition, which are necessary if law is to be understood as a matter of authority. Once imported, the central question for philosophy of law becomes the legal subject’s question, ‘But how can that be law for me?’
Similar content being viewed by others
Notes
My reconstruction of positivism brings it closer to a natural law position though not one that says that there is a relation between transcendent morality and law. Rather, it is the kind of position articulated by Fuller (1969) that a theory of legal order as authoritative requires attention to the moral resources intrinsic to legal order.
The translation of this passage in Kelsen (1945b) gives at 437 the anodyne ‘the transformation of power into law’ for the original ‘die Transformation der Macht zu Recht’ (Kelsen’s emphasis).
As Williams pointed out, the ‘binary cut’ between legitimate and illegitimate is ‘artificial’ (Williams 2005, pp. 10–11). My argument presupposes a distinction between the judgment that a law is immoral and that it is illegitimate. Whether there can be illegitimate laws in an otherwise legitimate legal order raises difficult issues that are beyond the scope of this paper. But the category of legally suspect laws alluded to in the text indicates the potential in any legal order for particular laws to provoke doubts about not only about the legitimacy of the particular law itself, but also the legal order as a whole. Such difficulties are part of the territory opened up when one rejects the binary cut.
References
Austin, John. 1861. Lectures on jurisprudence or the philosophy of positive law. London: John Murray.
Dworkin, Ronald. 1981. Justice and rights. In Taking rights seriously, ed. Ronald Dworkin, 150–183. Cambridge, MA: Harvard University Press.
Dyzenhaus, David. 2010. Hard cases in wicked legal systems: Pathologies of legality. Oxford: Oxford University Press.
Fuller, Lon L. 1969. The morality of law. New Haven: Yale University Press.
Gardner, John. 2012. Law as a leap of faith. Oxford: Oxford University Press.
Hart, H.L.A. 1982. Essays on Bentham: jurisprudence and political theory. Oxford: Clarendon Press.
Hart, H. L. A. 1983a. Positivism and the separation of law and morals. In Essays in jurisprudence and philosophy, ed. H. L. A. Hart, 49–87. Oxford: Clarendon Press.
Hart, H. L. A. 1983b. Kelsen Visited. In Essays in jurisprudence and philosophy, ed. H. L. A. Hart, 286–308. Oxford: OUP.
Hart, H. L. A. 1994. The concept of law, 2nd edn. Oxford: Clarendon Press.
Horton, John. 2015. Political legitimacy, justice and consent. Critical Review of International Social and Political Philosophy 15: 129–148.
Kelsen, Hans. 1945a. General theory of law and state. Cambridge, MA: Harvard University Press.
Kelsen, Hans. 1945b. Natural law doctrine and legal positivism. General theory of law and state, 389–446. Cambridge, MA: Harvard University Press.
Kelsen, Hans. 1967. Pure theory of law. Berkeley: University of California Press.
Kelsen, Hans. 1968a. Die Lehre von den drei Gewalten oder Funktionen des Staates. In Die Wiener rechtstheoretische Schule: Hans Kelsen, Adolf Merkl, Alfred Verdross, ed. Hans Klecatsky, René Marcic, and Herbert Schambeck, 1625–1660. Vienna: Europa Verlag.
Kelsen, Hans. 1968b. Die philosophischen Grundlagen der Naturrechtlehre und des Rechtspositivismus. In Die Wiener rechtstheoretische Schule: Hans Kelsen, ed. Hans Klecatsky, René Marcic, and Herbert Schambeck, 281–350. Adolf Merkl: Alfred Verdross.
Kelsen, Hans. 1981. Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu Einer Reinen Rechtslehre. Aalen: Scientia Verlag.
Kelsen, Hans. 1992. Introduction to the problems of legal theory. Oxford: Clarendon Press.
Kelsen, Hans. 2013. The essence and value of democracy. Plymouth: Rowman & Littlefield.
Mac Amlaigh, Cormac. 2016. Putting political constitutionalism in its place. International Journal of Constitutional Law 14: 175–197.
Raz, Joseph. 1983. The authority of law: Essays on law and morality. Oxford: Clarendon Press.
Raz, Joseph. 1994. Authority, law, and morality. In Ethics in the public domain: Essays in the morality of law and politics, ed. Joseph Raz, 194–221. Oxford: Clarendon Press.
Sleat, Matt. 2014. Legitimacy in realist thought: Between moralism and ‘realpolitik’. Political Theory 42: 314–337.
Wendt, Fabian. 2016. On realist legitimacy. Social Philosophy and Policy 32: 227–245.
Williams, Bernard. 2005. In the beginning was the deed: Realism and moralism in political argument. Princeton: Princeton University Press.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Dyzenhaus, D. The Inevitable Social Contract. Res Publica 27, 187–202 (2021). https://doi.org/10.1007/s11158-020-09467-z
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11158-020-09467-z