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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.
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New approaches in critical psychology have the potential to focus psychologists’ attention on the underside of law, particularly issues relating to legitimacy and justice. For the legal system to retain its legitimacy, the public must believe that law differs from politics as usual. Psychologists of law can assess the role of myth in law’s legitimacy and counter false consciousness that masks injustices created or maintained by legal institutions. Primary components of false consciousness about law are the belief that procedural justice is more important than substantive justice, the acceptance of legal doctrines that support corporate capitalism, and the belief that the rule of law is superior to individualized justice. Anarchist political theory in particular focuses attention on the negative aspects of law.
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To modernized publics, the electoral ballot and the formal courtroom symbolize the superiority of a law-based civil society over authoritarian reliance on brute force. Given the degree to which dictatorial regimes resist the transition to representative democracy, this symbolism is understandable. Surely the opposition of dictators and oligarchies to the creation of autonomous legal institutions demonstrates that the use of law to maintain order and resolve disputes will benefit members of society at the expense of the old guard. The rush by Western legal experts to help authorities in the fragmented Soviet empire write new constitutions and devise independent judicial systems follows from the assumption that law is self-evidently a good thing for those seeking justice, equality, and freedom. As Susan Silbey (1997) noted, American legal practices--often mandated by the International Monetary Fund and the World Bank--circulate around the globe, as do public images of law based on American television.