David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Law and Philosophy 20 (5):461-498 (2001)
Legal positivism dominates in the debate between it and natural law, but close attention to the work of Thomas Hobbes -- the "founder" of the positivist tradition -- reveals a version of anti-positivism with the potential to change the contours of that debate. Hobbes's account of law ties law to legitimacy through the legal constraints of the rule of law. Legal order is essential to maintaining the order of civil society; and the institutions of legal order are structured in such a way that government in accordance with the rule of law is intrinsically legitimate. I focus on Hobbes's neglected catalogue of the laws of nature. Only the first group gets much attention. Its function is to facilitate exit from the state of nature, an exit which Hobbes seems to make impossible. The second group sets out the moral psychology of both legislators and subjects necessary to sustain a properly functioning legal order. The third sets out the formal institutional requirements of such an order. The second and third groups show Hobbes not concerned with solving an insoluble problem of exit from the state of nature but with the construction of legitimate order. Because a sovereign is by definition one who governs through law, Hobbes's absolutism is constrained. Government in accordance with the rule of law is government subject to the moral constraints of the institutions of legal order
|Keywords||Law Logic Philosophy of Law Law Theory/Law Philosophy Political Science Social Issues|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Anthony F. Lang & Gabriella Slomp (2016). Thomas Hobbes: Theorist of the Law. Critical Review of International Social and Political Philosophy 19 (1):1-11.
Maximilian Jaede (2016). Hobbes on the Making and Unmaking of Citizens. Critical Review of International Social and Political Philosophy 19 (1):86-102.
Tom Sorell (2016). Law and Equity in Hobbes. Critical Review of International Social and Political Philosophy 19 (1):29-46.
Similar books and articles
Henrik Syse (2007). Natural Law, Religion, and Rights: An Exploration of the Relationship Between Natural Law and Natural Rights, with Special Emphasis on the Teachings of Thomas Hobbes and John Locke. St. Augustine's Press.
Fred R. Berger (1970). 'Law and Order' and Civil Disobedience. Inquiry 13 (1-4):254 – 273.
John Linarelli (2009). Analytical Jurisprudence and the Concept of Commercial Law. Penn State Law Review 114 (1):119-215.
Lars Vinx (2007). Hans Kelsen's Pure Theory of Law: Legality and Legitimacy. Oxford University Press.
Joseph Raz (1979). The Authority of Law: Essays on Law and Morality. Oxford University Press.
Helen Thornton (2005). State of Nature or Eden?: Thomas Hobbes and His Contemporaries on the Natural Condition of Human Beings. University of Rochester Press.
Neil MacCormick (2007). Institutions of Law: An Essay in Legal Theory. Oxford University Press.
Michael Cuffaro (2011). On Thomas Hobbes's Fallible Natural Law Theory. History of Philosophy Quarterly 28 (2):175-190.
Added to index2009-01-28
Total downloads58 ( #70,143 of 1,790,307 )
Recent downloads (6 months)4 ( #200,312 of 1,790,307 )
How can I increase my downloads?