Among the most-influential philosophers of law from the early modern period was Thomas Hobbes (1588–1679), whose theory of law was a novel amalgam of themes from both the natural-law and command-theory traditions. He also offered some of the earliest criticisms of common-law theory, which would be developed significantly by theorists in the 18th century. For Hobbes, law was the primary instrument of a sovereign by which to serve the ends of government, which were principally peace and the personal security of all its citizens. Writing during and after the English Civil Wars (1642–51), he developed the idea that government which ruled effectively by law is the only bulwark against anarchy or, as he famously put it, “a war of all against all.” Hobbes’s philosophy of law is in part an account of what law must be like in order to serve that function. Many scholars credit Hobbes as the founder of legal positivism, the dominant philosophical theory of law since the 17th century. The core ideas of legal positivism are that law is essentially a matter of social fact and that it bears at most a contingent connection with moral norms: many actions that are legally proscribed (or prescribed) can nonetheless be moral (or immoral). Insofar as this was Hobbes’s view, it was because he was an adherent of the command theory of law already discussed. In his magnum opus, Leviathan (1651), he wrote that “law in general, is not counsel, but command” and that civil (i.e., positive) laws are “those rules which the common-wealth hath commanded…by word, writing, or other sufficient sign of the will” that certain actions are to be done or not done. Since laws are “signs of the will” of the sovereign, Hobbes placed particular emphasis on the requirement that those “signs” are sufficiently public and intelligible to ordinary citizens.
Thomas Hobbes, detail of an oil painting by John Michael Wright; in the National Portrait Gallery, London.Courtesy of the National Portrait Gallery, London
Hobbes’s fundamental criticism of common-law theory was that the “immemorial customs” of the community, claimed to be the foundations of law, are not always easily discernible; they may in fact be deeply controversial, and so the common law may by nature fail to offer authoritative and final views of what its putative subjects ought to do. Hobbes rejected Coke’s idea that coming to know the law required an exercise of “artificial reason” and “long study and experience,” arguing that if lawyers and judges were necessary intermediaries between sovereign and subject, then the law would again fail to guide the conduct of those to whom it applied. He quipped that ordinary persons could dispense with the counsel of lawyers and master the contents of a legal system after about two months’ study.
Although there are undeniable positivist elements in Hobbes’s theory, in positing an important connection between natural and civil law (i.e., between morality and positive law), he was also inspired by the natural-law tradition. He claimed that natural law and civil law “contain each other and are of equal extent.” What Hobbes meant by that claim has been a topic of scholarly debate ever since; suffice it to say that he thought that there were modest but real moral limits on what the sovereign could legitimately demand of its subjects. For example, a putative law that required people to act in ways that led to their own death would fail to be valid positive law because it would violate the natural law of self-preservation, which Hobbes thought was at the foundation of the purpose of government. Hobbes thus attempted a synthesis of the natural-law and command traditions, though some scholars think he was far from successful. The 19th century
Jeremy Bentham (1748–1832) is one of the great philosophers of law in the Western tradition, but his legacy is unusual and is in fact still developing. He remains one of the most analytically rigorous and insightful philosophers ever to write about the nature of law, but much of his writing was, upon his death, unpublished—and indeed unread until the mid-20th century. A much-simplified version of his philosophy of law was presented by the English jurist John Austin (1790–1859), which in turn helped set the agenda for important work in the 20th century. Jeremy Bentham
There are two major themes in Bentham’s thought that extend over most of his published and unpublished writings on the nature of law. The first, and earliest, theme was a relentless and comprehensive critique of common-law theory and, indeed, an attack on the very idea of the common law itself. The second was an extension and revision of Hobbes’s conception of sovereignty and the idea of law as a kind of command.
Jeremy Bentham.© Photos.com/Thinkstock
First, Bentham thought that the common law that allegedly formed the basis of the law of England was confused in theory, dangerous in practice, and in any case incapable of being law in the fullest sense. His initial target with this line of thought was Blackstone, who in his Commentaries on the Laws of England (1765–69) tried to systematize and reduce the long history of English common law to an elegant set of basic principles. Blackstone repeatedly wrote of the “wisdom” of these principles as bound up with their long acceptance among the English people; the very fact of their long use and endorsement lent them legitimacy and binding force. Beginning in his first work, A Fragment on Government (1776), Bentham excoriated Blackstone and other common-law theorists for conflating the questions of what the law is and what it ought to be. This mistake, he claimed, had the effect of stifling reform of the law to adequately deal with the rapidly changing social and economic conditions of the late 18th century.
Bentham also advanced a critique of the common law as the exclusive domain of the professional elite—lawyers and judges—in which often obscure and technical language was used to keep the law shrouded in mystery from the point of view of ordinary citizens, all in the interest of perpetuating the myth (in Bentham’s view) that lawyers are experts in “artificial reason,” as Coke had first propounded. Bentham held, with Hobbes, that unless the language of the law and the methods used to interpret it were accessible and useful to the ordinary citizens to whom it applied, law would remain ineffectual as a guide to their behaviour. Bentham went farther and argued that a system in which judges allegedly developed legal doctrine on a case-by-case basis was also not capable of guiding the conduct of persons to whom it applied and therefore did not qualify as law. He mockingly called the common law “dog law,” because in each case its principles applied retrospectively and in a way that made future compliance impossible. Just as a dog can be punished ex post facto for a breach of the owner’s rules and yet be given no rational guidance as to how to avoid punishment in the future, so the judge in common-law court imposes legal liability on litigants but in a way that does not clearly declare in advance how to avoid such liability in future cases.
Bentham also made advances over Hobbes’s claims about sovereignty, law, and the relation between the two. He defined law as primarily “an assemblage of signs declarative of a volition conceived or adopted by the sovereign of a state” and so followed Hobbes and earlier theorists in thinking about law on the model of command. And like Hobbes, Bentham used the concept of sovereignty to explain the unity of a legal system as well as the criteria of legal validity for that system (that is, the criteria in virtue of which any particular norm or rule was deemed part of the law). A given rule is a law of a given system if, and only if, it bears the right relation (origination or adoption) to an exercise of sovereign legislative power. The power of the sovereign was in turn explained by reference to the habit of (or disposition to) obedience of the people of a community to laws issuing from this source. Bentham wrote of a general habit of obedience, by which he meant a dynamic interactional relationship between citizen and sovereign, in which the general habit consisted of regular conformity by the many citizens to the sovereign’s commands and in which such obedience was known and expected among citizens. In that regard, Bentham was a forerunner of the idea, developed significantly in the late 20th century, that law rests on complex social conventions that include the actions, mutual expectations, and beliefs of a sufficient part of the community. John Austin