PHIL 338 - Hobbes (Handout 1)

What is Legal Positivism according to Hobbes?

A view that the existence of a legal system depends on social facts rather than moral facts.

What do legal positivists deny?

Any necessary connection between legal validity and morality.

What is the consequence of Legal Positivism?

A policy can be moral but not legal, or legal but not moral.

What are the two theses of Hart's formulation of Legal Positivism?

Separation Thesis and Identification Thesis.

What does the Separation Thesis assert?

There is no necessary connection between law and morality.

What is Hobbes's stance on the nature of law?

He endorses the Identification Thesis, claiming law is a command from authority.

What is the 'state of nature' according to Hobbes?

The conditions where civil society structures are absent, causing human conflicts.

What are the basic features of the state of nature?

Human interests or desires conflict, leading to insecurity and fear without civil authority.

What are Hobbes’s first two laws of nature?

(I) The need to exit the state of nature and (II) the rational obligation to seek survival.

What is Hobbes's view of civil law?

Civil law comprises rules commanded by the Commonwealth to distinguish right and wrong.

How does Hobbes define 'right' and 'wrong'?

Right is what the sovereign commands; wrong is what the sovereign forbids.

What is the role of judges in Hobbes's legal framework?

Judges interpret the law based on commands from the sovereign, without moral considerations.

How does Hobbes regard the legitimacy of sovereign commands?

All commands of the sovereign are considered just due to their lawful authority.

What does Hobbes say about unjust laws?

Unjust laws are those that violate Hobbes's laws of nature.

What is the foundation of political authority according to Hobbes?

A rational compelling reason for members of society to obey laws to avoid chaos.

What does Hobbes equate law to?

The commands of the sovereign, reinforced by the authority to ensure compliance.

What does Hobbes argue about moral law?

Justice and injustice only apply within a societal context with a common power.

How does Hobbes distinguish between commands and counsels?

Commands derive authority, whereas counsels are based on reasons and suggestions.

Legal Positivism

A theory that maintains the separation and identification theses are true; it states there is no necessary connection between law and morality.

Separation Thesis

The claim that there is no necessary connection between law and morality.

Identification Thesis

The principle that legal systems include only laws whose content can be determined / identified without any appeal to moral arguments.

Sovereign

The ultimate authority in Hobbes's political theory, from whom commands that constitute law derive.

State of Nature

A theoretical condition without political authority, where individuals are in constant conflict over resources, leading to insecurity.

Laws of Nature

Principles derived from reason that dictate how individuals ought to act to ensure their preservation and peace.

Covenants

Agreements made between individuals to form a contract in order to escape the state of nature.

Civil Law

Rules commanded by the commonwealth to distinguish right from wrong, essentially based on sovereign authority.

Right and Wrong in Hobbes's view

Concepts defined by the commands of the sovereign; what is right is what the sovereign commands, and what is wrong is what the sovereign forbids.

Interpretation of Law

The process by which judges determine the application of laws, grounded in the authority of the sovereign.

Moral Positivism

The idea that justice and injustice are qualities that only relate to men in society, not in solitude.

Rational Obligation to Survive

Hobbes's assertion that individuals must take actions that ensure their survival, especially escaping the state of nature.

Political Authority

The rightful power to impose restrictions on individual freedoms in order to maintain peace and order in society.

Anti-positivism

The rejection of the core tenets of legal positivism, often linking legal interpretation with moral argument.

Judicial Authority

The power of judges to interpret and apply the law in a manner consistent with the intentions of the sovereign.