POLI 347 Lecture Notes - Lecture 5: Edward Coke, State Of Nature, Legal Positivism

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8 Aug 2016
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Sovereignty, Authority, and Law
Topic 5 (Sept 30 & Oct 2) Sovereignty, Authority, and Law
Readings: Dyzenhaus, Law and Morality (3rd ed.): Hobbes, Leviathan,6-28 and Hart,
The Concept of Law,
53-65NOTES:
The LEGAL POSITIVISM THOMAS HOBBES
PRELIMINARY: The five different meanings of legal positivism's; H.L.A, Hart’s footnote at
p52 of Law and Morality
Leviathan 1651. Dialogue between a Philosopher and a student of the common laws of
England, Hobbes/Bentham/ Austin, Civil War. HIS GOAL: geometric method: necessary
structure of law and government; eliminate disorder
Hobbes: Man is a creature of desire as opposed to Platos notion of man the different souls.
2. -Moral law: Law that goes against the law of God is wrong law
However, there is no necessary connection between law and morals (while a sovereign may
reference the bible etc, this doesn't mean there is a connection)
They don't focus on law in society and its different from law in the books.
Legal Positivism
4. -Contention that a legal system is a closed logical system in which correct legal decisions,
can be deduced from logical means of
there is an answer to everything within the legal system and the legal system is predetermined
This usually means that judges have no leeway, they just apply the rules there are no gaps in
the law. Hart would reject this
-Some people disagree about law being a closed logical system that it is an
incomplete system
5. -Contention that moral judgements cannot be established as statement of facts or by rational
arguments Hart would reject this.
Hart endorse 2 and 3 and also rejects 1 (law is a system of rules)
1. -Law is command (exists my position law has a commander) (Hobbes believes you
cant base law on right reason because everyone has their own right reason (especially
in the state of nature))
2. -Law is not dependant on morality and is its own system
3. -Positivism as analytical jurisprudence
4. -Closed logical system
5. -Morality is subjective
He thinks by .. we can eliminate disorder
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WHY WAR? THE STATE OF NATURE: Real or imaginary? Abolish government and
human beings become equal:
1) equality of strength: the weaker can kill the strongest; he says abolish government and
everyone is equal — theres no one to protect you. We’re equal because no matter
2) equity in wisdom; each is happy with his share, prudence: Theres also equality of
wisdom
3) each is judge of right and wrong; no common judge. Hence each hopes to satisfy his
desires. But the world is made up of limited and indivisible goods, War results, Wider
implications: contra Thrasymachus; contra Plato; contra Cicero and classic natural law
doctrine
Real in the sense that it relies on
Imagine because it r
Social condition without cove
Theres also equality of wisdom government cant be based n wisdom
Only certain kind of governments will do,
You entrust your rights Locke (government has a fiduciary relationship
CONTRACT OF SOVEREIGN GOVERNMENT: Why exit the state of nature? Fear of violent
death; first law of nature commands peace. How? transfer virtually all rights to
sovereign. Effect, Sovereign has authority: subjects have obligation to obey. Conquest
also confers authority. Legitimacy depends on ensuring order; you consented. Hence
two theories of authority in Hobbes. Also there is no difference between sovereign based
on conquest and sovereignty by institution.
Hobbes was one of the first theorist to understand the importance of authority
Two types of governments
-Government by institution
-Government by acquisition
Sovereignty by conquest is legitimate because he feels that if you surrender from fear of death
then you equally consent to their authority. fear does not eliminate their legitimacy
ABSOLUTISM: Rights of government:
1) sovereign never unjust
2) decides issues of peace and war;
3) controls education;
4) a kingdom divided in itself cannot stand” Etc
Hobbes would say : as soon as you have clashing authorities you will have conflict and
revert to the state of nature. So you should have one sovereign who’s words will
count and set the framework.
-That only one kind of government solves the problem of the state of nature and that is absolute
government
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