Discuss the influence of Thomas Hobbes (1588-1679) on legal theory
Answer plan
The legal and political theory of Thomas Hobbes represents a watershed, a pivotal turning moment in western intellectual thought – a rejection of religious based arguments for the justification of the political and legal spheres. Political authority was defined by Hobbes in non religious secular terms and Hobbes's legal theory sought to explain law in terms of human power and authority rather than in any link to a transcendent natural law order. In other words Hobbes's political and legal theory marked a break from the rooting of political and legal institutions in cosmological arguments as had been the case before Hobbes to a rejection of the cosmos or God as an explanation of political and legal order. The essay discusses the 'cosmological' view of law prevalent before Hobbes and for sometime afterwards down to the emergence of modern secular views of law in the writings of Bentham, Weber and Hart.
A skeleton essay is given.
Answer
Hobbes completely replaced the previous concern to see human law as linked to a divinely created natural law with a picture of law as man's only resource against violence and disorder. A sovereign authority is needed to protect men from the threats of others men. In the pre-legal 'state of nature' men suffer chronic insecurity and fear of attack from others and life is in the words of Hobbes 'nasty, solitary, brutish and short'. The rise of a central authority with an effective legal system marks the beginning of security and so all persons have an obligation to support the central power so long as it keeps civil peace. Hobbes gave us an understanding of human law which had no link to God or the cosmos in the words of Shirley Letwin for Hobbes law had 'no cosmic anchor' (see 'On the History of the Idea of Law' 2005) and for Hobbes law is entirely the product of human will- the will of the sovereign legislator. For Hobbes obedience to the sovereign is obedience to the law which is the expression of the sovereign's will. Hobbes comments on his legal theory in Chapters 25 and 26 of 'Leviathan' (1651):
'law in general, is not counsel, but command... Command is, where a man saith, do this, or do not this,without expecting other reason than the will of him that says it...none can make laws but the sovereign only: and that commands, are to be signified by sufficient signs....that the law is a command consisteth in declaration, or manifestation of the will of him that commandeth... Nor is it enough that law be written, and published; but also that there be manifest signs, that it proceedeth from the will of the sovereign.. public registers..public seals..by which all laws are sufficiently verified...the authority of the law consisteth in the command of the sovereign only.'
This view of law provided by Hobbes has been incredibly influential on later legal theorists such as Bentham, Austin, Kelsen, Hart and Raz. Hobbes's theory of law can be broken down into a few central elements:
(1) Law is the product of human will only and derives all of its authority from the power and authority of the human sovereign whether King, Parliament or dictatorship. This view of law obviously influenced Bentham in his attack on the idea in the late eighteenth century that there were any 'natural rights or laws' which exist before the sovereign has legislated legal rights.
(2) Law is the 'command of the sovereign'. Clearly this idea of Hobbes influenced Bentham and Austin's ' command theories of law'.
(3) Law claims authority in that the sovereign expects his laws to be obeyed because they are the sovereign's laws. This idea of Hobbes obviously influenced Raz in his idea that the law by its nature claims legitimate authority to rule supreme in a territory: see Raz 'The Authority of Law' (1979)
(4) Law is to be distinguished from other standards such as morality or religion by what Hobbes termed 'sufficient or manifest signs' such as public registers of laws. Obviously Hart's idea in 'The Concept of Law' (1961) of a 'rule of recognition' in all legal systems to distinguish law from morality or custom was derived from Hobbes.
However the core idea of Hobbes in his political and legal theory was to exclude God and the Bible from any part of the explanation of political and legal institutions. Richard Tuck writes in the Introduction to the Cambridge version of 'Leviathan' (1991):
'In all his works, Hobbes firmly denied the relevance of a conventional concept of a benevolent God to any philosophical enquiry...this determination to exclude a conventional notion of God from his philosophy persisted throughout all Hobbes's later works, including Leviathan.'
Before Hobbes ,'the big 5' of legal theory: Plato, Aristotle, Cicero, St. Augustine, St. Aquinas had all to a lesser or greater extent made the authority of human law turn on its relationship to God given 'natural law' or on human law's link to the eternal 'cosmos'.
Plato and Aristotle
As Shirley Letwin comments in 'On the History of the Idea of Law':
'No philosopher is more emphatic about the opposition between law and tyranny than Plato. He defines a tyrant as a ruler who is at liberty to do what he pleases...the extreme of servitude is to serve man. .Plato says 'the god of sober men is law.' To substitute the rule of law for tyranny ought to be the aim of every ruler, for only in that way could a city prosper. For Plato law secures the stability of the city.'
Like Plato, Aristotle saw law as the source of order in communal life. Aristotle commented that Law is defined as 'Reason free from all passion.' However for Aritotle law also served to make people virtuous or good. As Letwin comments:
'For the law is then supposed to teach the members of a society a particular way of living, and does so by imposing a 'system of order' on the activities of all citizens. The object of law is education in its broadest sense...a rule of life such as will make its members good and just. Because law gives a collection of men a common quality, Aristotle says that the law instructs, and that the art of the legislator moulds the citizens. Legislators make men good by forming habits in them. What distinguishes the 'instruction' provided by the law from that of the family is the coercion attached to law. Aristotle identifies the law with the rules of an educational enterprise.'
As Shirley Letwin comments:
'we have inherited from the ancient Greeks two ideas of law: one as a means of preserving peace and the other as a means to achieving human perfection.'
Cicero
However it is from Cicero the Roman politician, orator and jurist that the first clear link is made between human law and a God created 'natural law'. Cicero is often called the 'father' of natural law theory for it is his account of an eternal, unchanging realm of moral law created by God that formed the basic outline of natural law theory developed to its full extent by the master of natural law theory St. Thomas Aquinas in the 13th century some one thousand and two hundred years after Cicero's death in December 43 A.D. Cicero wrote of the eternal natural law against which all human law in all times is measured:
'true law is right reason, consonant with nature, spread through all people. It is constant and eternal...all nations at all times will be bound by this one eternal and unchangeable law...it is something eternal which rules the entire universe through the wisdom of its commands and prohibitions..just as that divine mind is the highest law, so too when in a human being it is brought to maturity, it resides in the mind of wise men' – Cicero 'On the Commonwealth and On the Laws'
This account of the natural law provided by the non Christian pagan Cicero played an important part in St. Thomas Aquinas' Christian analysis of natural law but St. Thomas Aquinas developed the idea of natural law far past Cicero's understanding of the natural law concept therefore although Cicero is the 'father' of natural law theory he is not the master of it-that accolade, master of natural law belongs to St. Thomas Aquinas.
St. Augustine
In Augustine's mature thought there is no trace of a theory of the state as concerned with man's perfection or with 'educating' man towards such purposes. The state's function is more restricted- to cancel out at least some of the effects of sin. Political authority and law serves to remedy the conflict, disorder and tensions of society. In a world of radical insecurity- 'this hell on earth'- the state and its laws serve this purpose according to St. Augustine:
'while they are feared, the wicked are held in check, and the good are enabled to live less disturbed among the wicked.'
For St. Augustine salvation for human beings could only come from an act of divine mercy by God and therefore the purpose of human law given the nasty brutishness of man was to provide a bulwark to secure society against disintegration.
As R.A. Markus comments in 'Saeculum: History and Society in the theology of St. Augustine' (1970):
'Control of the wicked within the bonds of a certain earthly peace remained Augustine's fundamental thought about the purpose of government....Political arrangements were for the safeguarding and fostering of a lowly form of peace: the public order and security which human sin has made unstable in society.'
As Shirley Letwin comments:
'Augustine repudiated the conception of a ruler or legislator as an intermediary between the earthly community and the heavenly kingdom, and instead regarded the object of the legislator as being to remedy the disorder of 'this hell upon earth.'
St. Aquinas
A much more complicated idea of the purpose of law to St.Augustine was provided by St. Thomas Aquinas. St. Aquinas under the influence of Aristotle argued that the state was not merely an institution devised to control and limit the unreasonable passions and appetites of human society but rather that the state was necessary for human beings to lead a real and full human life. Whereas for St. Augustine the state and its laws were a necessary evil given the prevalence of human sin, for St. Aquinas the state and its laws were a necessary good to enable men to lead a good life on earth.
St. Aquinas takes a much more positive view of law than St.Augustine. For St. Aquinas law is the primary proper means of co-ordinating civil society for the common good. The natural law was for S. Aquinas the ultimate guide for rulers on earth seeking to govern society wisely for the common good. For Aquinas natural law is 'imprinted' in human reason and is therefore evident to everyone who uses reason. Aquinas wrote of the natural law:
'The natural law is promulgated by the very fact that God instilled it into man's mind so as to be known by him naturally.'
For Aquinas the natural law is the cosmic link between the positive laws made by men that rule earthly cities and the Divine law. Human law has its authority and justness to the extent that it conforms with the God given unwritten natural law.
Thomas Hobbes and after
For Thomas Hobbes the authority of human law did not reside in any compliance with a mysterious 'natural law' as St. Aquinas had argued. For Hobbes the authority of law lay solely in the fact that law was promulgated or 'commanded' by the sovereign authority- 'The Leviathan'. However natural law theory did not die out immediately after Thomas Hobbes. For example John Locke, whose political theory ideas of the clear separation of powers and limited Government was a major influence on the framers of the United States constitution, had in his legal theory asserted a form of natural law theory. John Locke wrote:
' If natural law is not binding on men, neither can any human positive law be binding. For the laws of the civil magistrate derive their whole force from the constraining power of natural law...the binding force of civil law is dependent on natural law.'
This view of Locke that human law derived all its authority from natural law would have been totally rejected by Thomas Hobbes. However despite Hobbes natural law theory continued to have supporters in the period after Hobbes. Hugo Grotius and Samuel Pufendorf were two late seventeenth century writers who continued the natural law tradition.
Bentham
However Jeremy Bentham in the late eighteenth century under the influence of the writings of Hobbes clearly repudiated any natural law views about law.
Jeremy Bentham was a product of the eighteenth century Enlightenment or 'age of reason'. The Enlightenment was an attack on old habits of thought which were alleged to rest on the dark forces of superstition, irrationality and religion. One doctrine which came under attack during the Enlightenment was the doctrine of natural law which had been the dominant jurisprudential doctrine before the Enlightenment. Bentham and other Enlightenment thinkers such as Montesquieu attacked the idea that there was a universal natural law applicable to and binding on all mankind, created by God and discoverable through reason and which formed a basis for the promulgation and authority of man-made law. Bentham argued that the natural law was 'a mere work of the fancy' having no basis in reality and that it was not a God-given natural law which gave man-made law its authority but rather human authority alone which established the authority of man made law.In other words human law was merely the result of the 'commands of the sovereign' and did not derive its authority from any link to a mystical and fictitious 'natural law.'
It is important to take note of the historical context in which Bentham formulated his 'command theory of law'. Bentham was keen to refute the idea of natural law thinkers such as Grotius that there could be property rights in the 'natural law sphere' even before man-made law had spoken. For Grotius the ultimate origin of the right of property was that God at creation had given the earth to mankind and so there could be 'natural' rights of property before the say-so of man-made law. For Bentham this natural law doctrine was to be completely rejected. For Bentham, following Hobbes and Hume, only such goods and property that had been assigned to a man by positive law (man-made law) could be said to belong to him. For Bentham property and man-made law were born together and there could be no property rights before man-made law had spoken and therefore for Bentham natural law theory was to be rejected .Indeed natural law theory went into a steep decline in the nineteenth century following the Enlightenment attack of Bentham and others and natural law theory only revived in importance in the twentieth century. For Bentham the man-made law derived its authority not from God or the natural law but from the fact of promulgation by a sovereign- the law was the 'commands of the sovereign'- no more, no less.
Jeremy Bentham’s “command theory” visualized law not as a reflection of the ordered universe, but as the expression of power. For Shirley Letwin in 'On the History of the Idea of Law', Bentham's legal theory marks a critical turning point in our understanding of law. In fact, she claims that Bentham’s association with the positivist theory of law (she says that he is often described as the “father of positivist jurisprudence”) severely undervalues his overall contribution to moving the conception of law in a new direction towards seeing law purely as a result or instrument of human power.
Max Weber
Following the 'Enlightenment' or the 'Age of Reason' in the late eighteenth century natural law went into a sharp decline. The German sociologist Max Weber in 1920 'On Law in Economy and Society' commented that natural law theory was dead:
the axioms of natural law have been deeply discredited....In consequence of both rationalism and modern intellectual scepticism in general, the axioms of natural law have lost all capacity to provide the fundamental bases of a legal system...The disappearance of the old natural law conceptions has destroyed all possibility of providing the law with a metaphysical dignity by virtue of its immanent qualities.'
According to Weber modern law cannot claim for its dignity and authority any connection to natutal law since few people believe in the existence of a natural law anymore. Human law is seen now according to Weber as merely
'the product or the technical means of a compromise between conflicting interests.'
Any authority modern law has according to Weber, lies in 'legality'- the routine and impersonal application of legal rules by impartial officials. Citizens respect the authority of the law because the law is applied in an impersonal and impartial manner to all citizens. It is easy to see how Weber influenced Professor Hart in 'The Concept of Law' where Hart defines law as a union of different kinds of officially admininistered rules. Weber argued that the authority of the law in the modern era did not reside in a fictional 'natural law' but rather there is general obedience to law by virtue of 'legality': by citizen's belief in the validity of legal statute and official competence based on rationally created rules.
Alf Ross and critique of natural law
The Scandanavian Alf Ross in 'On Law and Justice' argues that because 'natural law' is such an indistinct and mysterious idea it is an ideology that can be used to justify injustice on earth:
'The ideology does not exist that cannot be defended by an appeal to the law of nature. And, indeed, how can it be otherwise, since the ultimate basis for every natural right lies in a private direct insight, an intuition. The historical variability of natural law supports the interpretation that natural law postulates are merely constructions to buttress emotional attitudes and the fulfillment of certain needs.'
Natural law today
There has been something of a revival of natural law theory in the last thirty years with such writers as John Finnis, Mark Murphy, Robert George and Michael Moore re-invigoarating the old natural law tradition for a new generation. However as Lloyd Weinreb comments in 'The Moral Point of view' (in 'Natural Law, Liberalism and Morality' edited by Robert George 1996) natural law theory is today seen as outside the mainstream and not engaged with by leading legal theorists such as Dworkin and Raz. Weinreb comments:
'for, although natural law has its adherents and periodically prompts a fierce attack from its detractors, the blunt truth is that philosophically it is a curiosity outside the mainstream, regarded mostly as a side-show and not to be taken very seriously. Defending natural law as philosophy, one becomes accustomed to seeing a wry smile on the faces of listeners, as if one were describing a private and somewhat peculiar hobby.'
The mainstream in legal philosophy was first established by Thomas Hobbes in 1651 who in his masterwork 'Leviathan' saw law as a human artifact only and that the law's authority rested in human institutions, for Hobbes the 'sovereign,' and that law did not look beyond to a natural law for validation.
Notes
For a very good history of the idea of law from Plato to modern times including discussion of Thomas Hobbes see 'On the History of the Idea of Law' (2005) by Shirley Letwin. Hobbes's 'Leviathan' is discussed in the Oxford World's Classics edition of 'Leviathan' (1996). Good discussion of 'Leviathan' is found in Canbridge Texts in the History of Political Thought (1991) edited by Richard Tuck.