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Thomas Hobbes’s substantially constrained absolutism: the fundamental law of the commonwealth as a substantial constraint on the sovereign’s power
Jurisprudence  (IF),  Pub Date : 2021-04-21, DOI: 10.1080/20403313.2021.1912901
Facundo Rodriguez


In this essay, I contend that the usually neglected Fundamental Law of the Commonwealth, which commands that the essential rights of the sovereign be retained by the sovereign, imposes substantial limitations on the sovereign’s power, where substantial limitations mean limitations that render some options strictly closed for the sovereign. The option that the Fundamental Law strictly closes for the sovereign, I argue, is the transferral or renouncement of any of his essential rights. Therefore, I follow David Dyzenhaus and Thomas Poole in arguing that Hobbes’s absolutism is constrained; but, by focusing on The Fundamental Law overlooked by them, I suggest that Hobbes recognises substantial – and not just formal – limitations on the sovereign’s power. Secondly, I claim that the Fundamental Law, given that it arises from the ‘the Essence of Sovereignty’, is to be understood as a constitutive principle of sovereignty and so that, as such, it needs no external enforcement. This means that the Fundamental Law can constrain the sovereign without the need of a ‘Judge above [the sovereign with the capacity] to punish him’ – which, as Hobbes points out, ‘[would imply] making a new Sovereign’ and, thus, trigger an infinite regress.