Modern Legal Philosophy: Natural Law, Positivism, and Hobbes’ Leviathan
UNIT 2: Modern Legal Philosophy
I) Genesis and Development:
The two major conceptions of law are natural law and positivism. These approaches have established a dispute; let’s examine their features from the 17th and 18th centuries.
Natural law has its origins in Greece, with the Stoics. This concept, along with Christianity, endured. Natural law often refers to the rationalist natural law of those centuries, linked to the legitimacy problems of the era.
Several thinkers legitimize the state. Most share two theses:
1. Above positive law (human law), there is natural right, a set of universally valid rules and principles.
2. Positive law is valid only insofar as it agrees with natural law; it must be just. If it is unjust, it is not right.
These propositions are common. Natural law is often based on religious assumptions: an eternal law governs the universe, God’s creation. This law becomes natural law and, subsequently, positive law through human legislation.
Natural law encompasses multiple streams with different perspectives but a common denominator: the belief in a higher, subjective, universal, and permanent nature. These general principles can be known through right reason or rationality. Natural law operates in a dual system, supporting both natural law and positive law.
How did we move from medieval iusnaturalism to 17th and 18th-century rationalism? The difference lies in interpreting the universality and superiority of natural law.
Universality of natural law:
* Methodological
* Content
Medieval causal reason contrasts with modernity’s final reason. Modern humans use reason to observe nature and justify their surroundings. Right reason is not infallible but the act of thinking, the ability to calculate.
Demonstrative reason contrasts with interpretive reason. Classical rationalism, faithful to Aristotelian and Thomist thought, considers ethics and politics as open matters, subject to interpretation.
Medieval natural law is minimalist, while rationalist natural law is maximalist.
In modernity, the state’s goal is to protect natural rights. Several categories exist.
Civil society is similar to the political community, equivalent to the state.
All theories reference a state of nature and a social contract, justifying the political community’s emergence. These concepts shape our view of law, sovereignty, and related theories.
Hobbes:
Hobbes argues that the state of nature (a fictional state) is a methodological device to justify political power. The sovereign must legislate as if the law expresses a consensus. The state of nature is a state of conflict, necessitating natural laws and the state’s establishment. This conflict arises from the pursuit of power and dominion over others. According to Hobbes, men seek power not for its own sake but to achieve their objectives and protect themselves. In society, conflict is inevitable because individuals are equal in strength and intelligence.
Since men are equal in strength and selfishly pursue their ends, potential conflict becomes real.
Reason drives men to seek domination. The state of nature is a war of all against all, a hostile, insecure, and amoral state without law. It leads to a solitary, impoverished life, necessitating a moral order, a state. In pure nature, agreement or contract is impossible. There is no obligation to refrain from actions deemed necessary to preserve our goals and lives.
Reason leads men to adopt natural laws. Hobbes had a unique concept of natural law: maxims of prudence, sometimes with an obligation (in the internal forum), but generally as teachings to leave the state of war. They are acceptable to the extent that they facilitate mutually beneficial cooperation, establishing a protected area and fundamental rights for each person—the germ of egalitarianism. Natural laws have a compelling force in the internal forum.
Hobbes rejects the “fool” or “free rider” thesis: one who benefits from others’ compliance without contributing (e.g., not paying taxes).
Rules apply because they benefit everyone. They must be followed if they benefit individuals, even if they occasionally conflict with immediate personal interests, as they are generally beneficial to all.
However, Hobbes argues that it makes no sense to adhere to the rule of not lying in a society of liars.
Hobbes develops a theory of sovereignty. The state ensures compliance with natural laws, making them mandatory in the internal forum. For Hobbes, natural laws are conditions for voluntary, mutually beneficial cooperation (they guide the way to peace and security).
Hobbes adopts the modern idea of sovereignty and develops a normative theory justifying it. The authority (Leviathan) serves both the common interest and individual interests. Individuals with natural rights choose to be part of a social contract and a state whose goal is to create law; therefore, the law is the will of the state (the Leviathan). The contract is an agreement among equals seeking their own good—a covenant of citizens to establish the sovereign. The sovereign is above the law, absolute (solutus legibus). The surrender of natural rights through the covenant must be absolute, making the sovereign superior to all. A less absolute sovereign could not guarantee peace and the lives of citizens.
Characteristics of the sovereign:
* Delegation to the sovereign for life.
* The sovereign cannot commit injustice against subjects; sovereign power is never illegal.
* The sovereign judges opinions that undermine peace and the common good.
* The sovereign has the ability to establish laws governing property.
The Hobbesian Leviathan is the absolute ruler.