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6A - Early Legal Positivism - Hobbes, Bentham, and Austin.docx

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Legal Studies
LS 101
Susan Brophy

Unit II: Key theories in Legal Studies Week 6A October 15,2013 Session 8: Early Legal Positivism – Hobbes, Bentham, and Austin Review  Two Charters reflect change in attitudes  Curb despotism (to govern by your own will without the the interest of society) and protect the commons  Linebaugh o History from below o Common rights versus human rights  Common/habit as the praxis of living well Background  Natural Law Theory  Legal Positivism o Differences? Similarities?  What becomes of natural law, reason, and the ‘common good’?  Hobbes, transitional figure Excursus Basic knowledge of history is vitl to understanding the evolution of Legal Studies. Today we move from Magna Carta (1215) to the Industrial Revolution (1800s). Thomas Hobbes Biography  1588-1679, England  Interested in the systematic approach, uses this to understand Law  Social contract theory o Also know as “contractarianism  State of nature: o “war of all men, against all men” (p.49) o Developed the idea of a ‘social contract’  Wrote De Cive (1642) o 3 parts; liberty, sovereignty, religion o Pre Leviathan Claims Unit II: Key theories in Legal Studies Week 6A October 15,2013  We enter civil society for profit, not peace  Civil society is not a goal in itself o “All Society therefore is either for Gain, or for Glory; (i.e.) not so much for love of our Fellowes, as for love of our Selves” (p. 44)  What unites us all: o Fear of each other o “natural equality of men”; the will to hurt o Must be taught to be civil o “Man is made fit for Society not by Nature, but by Education” (p.44)  The will to avoid death is natural and rational  Preservation of self and family = “first foundation of natural right” (p.47)  Law of nature = product of reason  Enter society by constaint or consent  Man gives up absolute freedom, sovereign power must then protect man Bentham Biography  1748-1832, London (250 years after Hobbes)  Natural law was “nonsense”  Utilitarianism Claims  “Of Laws in General” (finished in 1782)  Ends which a Law May Have in View o Only the principle of utility motivates sovereign power to ad
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