San Beda College of Law

Mendiola, Manila

Legal Positivism
Legal Philosophy

Atty. Rochelle Yvette Dakanay-Galano

Professor
Christine Marie Patron • Gideon Villar Peña
Alexander Perez • Ryan John Pernato • Greg
Pua
 Legal Positivism
Legal positivism is the thesis that the existence and content of law
depends on social facts and not on its merits. The positivist thesis does
not say that law's merits are unintelligible, unimportant, or peripheral to
the philosophy of law. It says that they do not determine whether laws or
legal systems exist. Whether a society has a legal system depends on the
presence of certain structures of governance, not on the extent to which it
satisfies ideals of justice, democracy, or the rule of law. What laws are in
force in that system depends on what social standards its officials
recognize as authoritative; for example, legislative enactments, judicial
decisions, or social customs. The fact that a policy would be just, wise,
efficient, or prudent is never sufficient reason for thinking that it is
actually the law, and the fact that it is unjust, unwise, inefficient or
imprudent is never sufficient reason for doubting it. According to
positivism, law is a matter of what has been posited (ordered, decided,
practiced, tolerated, etc.); as we might say in a more modern idiom,
positivism is the view that law is a social construction. While it is probably
the dominant view among analytically inclined philosophers of law, it is
also the subject of competing interpretations together with persistent
criticisms and misunderstandings.

Development and Influence

Legal positivism has a long history and a broad influence. It has

antecedents in ancient political philosophy and is discussed, and the term
itself introduced, in mediaeval legal and political thought. The modern
doctrine, however, owes little to these forbears. Its most important roots
lie in the conventionalist political philosophies of Hobbes and Hume, and
its first full elaboration is due to Jeremy Bentham (1748-1832) whose
account Austin adopted, modified, and popularized. For much of the next
century an amalgam of their views, according to which law is the
command of a sovereign backed by force, dominated legal positivism and
English philosophical reflection about law. By the mid-twentieth century,
however, this account had lost its influence among working legal
philosophers. Its emphasis on legislative institutions was replaced by a
focus on law-applying institutions such as courts, and its insistence of the
role of coercive force gave way to theories emphasizing the systematic
and normative character of law. The most important architects of this
revised positivism are the Austrian jurist Hans Kelsen (1881-1973) and the
two dominating figures in the analytic philosophy of law, H.L.A. Hart
(1907-92) and Joseph Raz among whom there are clear lines of influence,
but also important contrasts. Legal positivism's importance, however, is
not confined to the philosophy of law. It can be seen throughout social
theory, particularly in the works of Marx, Weber, and Durkheim, and also
(though here unwittingly) among many lawyers, including the American
“legal realists” and most contemporary feminist scholars. Although they

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disagree on many other points, these writers all acknowledge that law is
essentially a matter of social fact. Some of them are, it is true,
uncomfortable with the label “legal positivism” and therefore hope to
escape it. Their discomfort is sometimes the product of confusion.
Lawyers often use “positivist” abusively, to condemn a formalistic
doctrine according to which law is always clear and, however pointless or
wrong, is to be rigorously applied by officials and obeyed by subjects. It is
doubtful that anyone ever held this view; but it is in any case false, it has
nothing to do with legal positivism, and it is expressly rejected by all
leading positivists. Among the philosophically literate another, more
intelligible, misunderstanding may interfere. Legal positivism is here
sometimes associated with the homonymic but independent doctrines of
logical positivism (the meaning of a sentence is its mode of verification) or
sociological positivism (social phenomena can be studied only through the
methods of natural science). While there are historical connections, and
also commonalities of temper, among these ideas, they are essentially
different. The view that the existence of law depends on social facts does
not rest on a particular semantic thesis, and it is compatible with a range
of theories about how one investigates social facts, including non-
naturalistic accounts. To say that the existence of law depends on facts
and not on its merits is a thesis about the relation among laws, facts, and
merits, and not otherwise a thesis about the individual relata. Hence, most
traditional “natural law” moral doctrines--including the belief in a
universal, objective morality grounded in human nature--do not contradict
legal positivism. The only influential positivist moral theories are the views
that moral norms are valid only if they have a source in divine commands
or in social conventions. Such theists and relativists apply to morality the
constraints that legal positivists think hold for law.

The Existence and Sources of Law

Every human society has some form of social order, some way of
marking and encouraging approved behavior, deterring disapproved
behavior, and resolving disputes. What then is distinctive of societies with
legal systems and, within those societies, of their law? Before exploring
some positivist answers, it bears emphasizing that these are not the only
questions worth asking. While an understanding of the nature of law
requires an account of what makes law distinctive, it also requires an
understanding of what it has in common with other forms of social control.
Some Marxists are positivists about the nature of law while insisting that
its distinguishing characteristics matter less than its role in replicating and
facilitating other forms of domination. They think that the specific nature
of law casts little light on their primary concerns. But one can hardly know
that in advance; it depends on what the nature of law actually is.

According to Bentham and Austin, law is a phenomenon of large

societies with a sovereign: a determinate person or group who have
supreme and absolute de facto power -- they are obeyed by all or most
others but do not themselves similarly obey anyone else. The laws in that

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society are a subset of the sovereign's commands: general orders that
apply to classes of actions and people and that are backed up by threat of
force or “sanction.” This imperatival theory is positivist, for it identifies the
existence of legal systems with patterns of command and obedience that
can be ascertained without considering whether the sovereign has a
moral right to rule or whether his commands are meritorious. It has two
other distinctive features. The theory is monistic: it represents all laws as
having a single form, imposing obligations on their subjects, though not
on the sovereign himself. The imperativalist acknowledges that ultimate
legislative power may be self-limiting, or limited externally by what public
opinion will tolerate, and also that legal systems contain provisions that
are not imperatives (for example, permissions, definitions, and so on). But
they regard these as part of the non-legal material that is necessary for,
and part of, every legal system. (Austin is a bit more liberal on this point).
The theory is also reductivist, for it maintains that the normative language
used in describing and stating the law -- talk of authority, rights,
obligations, and so on -- can all be analyzed without remainder in non-
normative terms, ultimately as concatenations of statements about power
and obedience.

Imperatival theories are now without influence in legal philosophy.

What survives of their outlook is the idea that legal theory must ultimately
be rooted in some account of the political system, an insight that came to
be shared by all major positivists save Kelsen. Their particular conception
of a society under a sovereign commander, however, is friendless (except
among Foucauldians, who strangely take this relic as the ideal-type of
what they call “juridical” power). It is clear that in complex societies there
may be no one who has all the attributes of sovereignty, for ultimate
authority may be divided among organs and may itself be limited by law.
Moreover, even when “sovereignty” is not being used in its legal sense it
is nonetheless a normative concept. A legislator is one who has authority
to make laws, and not merely someone with great social power, and it is
doubtful that “habits of obedience” is a candidate reduction for explaining
authority. Obedience is a normative concept. To distinguish it from
coincidental compliance we need something like the idea of subjects
being oriented to, or guided by, the commands. Explicating this will carry
us far from the power-based notions with which classical positivism hoped
to work. The imperativalists' account of obligation is also subject to
decisive objections. Treating all laws as commands conceals important
differences in their social functions, in the ways they operate in practical
reasoning, and in the sort of justifications to which they are liable. For
instance, laws conferring the power to marry command nothing; they do
not obligate people to marry, or even to marry according to the prescribed
formalities. Nor is reductivism any more plausible here: we speak of legal
obligations when there is no probability of sanctions being applied and
when there is no provision for sanctions (as in the duty of the highest
courts to apply the law). Moreover, we take the existence of legal
obligations to be a reason for imposing sanctions, not merely a
consequence of it.

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 Hans Kelsen retains the imperativalists' monism but abandons their
reductivism. On his view, law is characterized by a basic form and basic
norm. The form of every law is that of a conditional order, directed at the
courts, to apply sanctions if a certain behavior (the “delict”) is performed.
On this view, law is an indirect system of guidance: it does not tell
subjects what to do; it tells officials what to do to its subjects under
certain conditions. Thus, what we ordinarily regard as the legal duty not to
steal is for Kelsen merely a logical correlate of the primary norm which
stipulates a sanction for stealing. The objections to imperatival monism
apply also to this more sophisticated version: the reduction misses
important facts, such as the point of having a prohibition on theft. (The
courts are not indifferent between, on the one hand, people not stealing
and, on the other, stealing and suffering the sanctions.) But in one respect
the conditional sanction theory is in worse shape than is imperativalism,
for it has no principled way to fix on the delict as the duty-defining
condition of the sanction -- that is but one of a large number of relevant
antecedent conditions, including the legal capacity of the offender, the
jurisdiction of the judge, the constitutionality of the offense, and so forth.
Which among all these is the content of a legal duty?

Kelsen's most important contribution lies in his attack on

reductivism and his doctrine of the “basic norm.” He maintains that law is
normative and must understood as such. Might does not make right -- not
even legal right -- so the philosophy of law must explain the fact that law
is taken to impose obligations on its subjects. Moreover, law is a
normative system: “Law is not, as it is sometimes said, a rule. It is a set of
rules having the kind of unity we understand by a system”. For the
imperativalists, the unity of a legal system consists in the fact that all its
laws are commanded by one sovereign. For Kelsen, it consists in the fact
that they are all links in one chain of authority. For example, a by-law is
legally valid because it is created by a corporation lawfully exercising the
powers conferred on it by the legislature, which confers those powers in a
manner provided by the constitution, which was itself created in a way
provided by an earlier constitution. But what about the very first
constitution, historically speaking? Its authority, says Kelsen, is
“presupposed.” The condition for interpreting any legal norm as binding is
that the first constitution is validated by the following “basic norm:” “the
original constitution is to be obeyed.” Now, the basic norm cannot be a
legal norm -- we cannot fully explain the bindingness of law by reference
to more law. Nor can it be a social fact, for Kelsen maintains that the
reason for the validity of a norm must always be another norm -- no ought
from is. It follows, then, that a legal system must consist of norms all the
way down. It bottoms in a hypothetical, transcendental norm that is the
condition of the intelligibility of any (and all) other norms as binding. To
“presuppose” this basic norm is not to endorse it as good or just --
resupposition is a cognitive stance only -- but it is, Kelsen thinks, the
necessary precondition for a non-reductivist account of law as a normative
system.

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 There are many difficulties with this, not least of which is the fact
that if we are willing to tolerate the basic norm as a solution it is not clear
why we thought there was a problem in the first place. One cannot say
both that the basic norm is the norm presupposing which validates all
inferior norms and also that an inferior norm is part of the legal system
only if it is connected by a chain of validity to the basic norm. We need a
way into the circle. Moreover, it draws the boundaries of legal systems
incorrectly. The Canadian Constitution of 1982 was lawfully created by an
Act of the U.K. Parliament, and on that basis Canadian law and English law
should be parts of a single legal system, rooted in one basic norm: ‘The
(first) U.K. constitution is to be obeyed.’ Yet no English law is binding in
Canada, and a purported repeal of the Constitution Act by the U.K. would
be without legal effect in Canada.

If law cannot ultimately be grounded in force, or in law, or in a

presupposed norm, on what does its authority rest? The most influential
solution is now H.L.A. Hart's. His solution resembles Kelsen's in its
emphasis on the normative foundations of legal systems, but Hart rejects
Kelsen's transcendentalist, Kantian view of authority in favour of an
empirical, Weberian one. For Hart, the authority of law is social. The
ultimate criterion of validity in a legal system is neither a legal norm nor a
presupposed norm, but a social rule that exists only because it is actually
practiced. Law ultimately rests on custom: customs about who shall have
the authority to decide disputes, what they shall treat as binding reasons
for decision, i.e. as sources of law, and how customs may be changed. Of
these three “secondary rules,” as Hart calls them, the source-determining
rule of recognition is most important, for it specifies the ultimate criteria
of validity in the legal system. It exists only because it is practiced by
officials, and it is not only the recognition rule (or rules) that best explains
their practice, it is rule to which they actually appeal in arguments about
what standards they are bound to apply. Hart's account is therefore
conventionalist: ultimate legal rules are social norms, although they are
neither the product of express agreement nor even conventions in the
Schelling-Lewis sense. Thus for Hart too the legal system is norms all the
way down, but at its root is a social norm that has the kind of normative
force that customs have. It is a regularity of behavior towards which
officials take “the internal point of view:” they use it as a standard for
guiding and evaluating their own and others' behavior, and this use is
displayed in their conduct and speech, including the resort to various
forms of social pressure to support the rule and the ready application of
normative terms such as “duty” and “obligation” when invoking it.

It is an important feature of Hart's account that the rule of

recognition is an official custom, and not a standard necessarily shared by
the broader community. If the imperativalists' picture of the political
system was pyramidal power, Hart's is more like Weber's rational
bureaucracy. Law is normally a technical enterprise, characterized by a
division of labour. Ordinary subjects' contribution to the existence of law
may therefore amount to no more than passive compliance. Thus, Hart's

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necessary and sufficient conditions for the existence of a legal system are
that “those rules of behavior which are valid according to the system's
ultimate criteria of validity must be generally obeyed, and ... its rules of
recognition specifying the criteria of legal validity and its rules of change
and adjudication must be effectively accepted as common public
standards of official behavior by its officials”. And this division of labour is
not a normatively neutral fact about law; it is politically charged, for it sets
up the possibility of law becoming remote from the life of a society, a
hazard to which Hart is acutely alert.

Although Hart introduces the rule of recognition through a

speculative anthropology of how it might emerge in response to certain
deficiencies in a customary social order, he is not committed to the view
that law is a cultural achievement. To the contrary, the idea that legal
order is always a good thing, and that societies without it are deficient, is
a familiar element of many anti-positivist views, beginning with Henry
Maine's criticism of Austin on the ground that his theory would not apply
to certain Indian villages. The objection embraces the error it seeks to
avoid. It imperialistically assumes that it is always a bad thing to lack law,
and then makes a dazzling inference from ought to is: if it is good to have
law, then each society must have it, and the concept of law must be
adjusted to show that it does. If one thinks that law is a many splendored
thing, one will be tempted by a very wide concept of law, for it would
seem improper to charge others with missing out. Positivism simply
releases the harness. Law is a distinctive form of political order, not a
moral achievement, and whether it is necessary or even useful depends
entirely on its content and context. Societies without law may be perfectly
adapted to their environments, missing nothing.

A positivist account of the existence and content of law, along any

of the above lines, offers a theory of the validity of law in one of the two
main senses of that term. Kelsen says that validity is the specific mode of
existence of a norm. An invalid marriage is not a special kind of marriage
having the property of invalidity; it is not a marriage at all. In this sense a
valid law is one that is systemically valid in the jurisdiction -- it is part of
the legal system. This is the question that positivists answer by reference
to social sources. It is distinct from the idea of validity as moral propriety,
i.e. a sound justification for respecting the norm. For the positivist, this
depends on its merits. One indication that these senses differ is that one
may know that a society has a legal system, and know what its laws are,
without having any idea whether they are morally justified. For example,
one may know that the law of ancient Athens included the punishment of
ostracism without knowing whether it was justified, because one does not
know enough about its effects, about the social context, and so forth.

No legal positivist argues that the systemic validity of law

establishes its moral validity, i.e. that it should be obeyed by subjects or
applied by judges. Even Hobbes, to whom this view is sometimes
ascribed, required that law actually be able to keep the peace, failing

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which we owe it nothing. Bentham and Austin, as utilitarians, hold that
such questions always turn on the consequences and both acknowledge
that disobedience is therefore sometimes fully justified. Kelsen insists that
“The science of law does not prescribe that one ought to obey the
commands of the creator of the constitution”. Hart thinks that there is
only a prima facie duty to obey, grounded in and thus limited by fairness
-- so there is no obligation to unfair or pointless laws. Raz goes further
still, arguing that there isn't even a prima facie duty to obey the law, not
even in a just state. The peculiar accusation that positivists believe the
law is always to be obeyed is without foundation. Hart's own view is that
an overweening deference to law consorts more easily with theories that
imbue it with moral ideals, permitting “an enormous overvaluation of the
importance of the bare fact that a rule may be said to be a valid rule of
law, as if this, once declared, was conclusive of the final moral question:
‘Ought this law to be obeyed?”.

Moral Principles and the Boundaries of Law

The most influential criticisms of legal positivism all flow, in one way
or another, from the suspicion that it fails to give morality its due. A
theory that insists on the facticity of law seems to contribute little to our
understanding that law has important functions in making human life go
well, that the rule of law is a prized ideal, and that the language and
practice of law is highly moralized. Accordingly, positivism's critics
maintain that the most important features of law are not to be found in its
source-based character, but in law's capacity to advance the common
good, to secure human rights, or to govern with integrity. (It is a curious
fact about anti-positivist theories that, while they all insist on the moral
nature of law, without exception they take its moral nature to be
something good. The idea that law might of its very nature be morally
problematic does not seem to have occurred to them.)

It is beyond doubt that moral and political considerations bear on

legal philosophy. As Finnis says, the reasons we have for establishing,
maintaining or reforming law include moral reasons, and these reasons
therefore shape our legal concepts. But which concepts? Once one
concedes, as Finnis does, that the existence and content of law can be
identified without recourse to moral argument, and that “human law is
artefact and artifice; and not a conclusion from moral premises,” the
Thomistic apparatus he tries to resuscitate is largely irrelevant to the truth
of legal positivism. This vitiates also Lon Fuller's criticisms of Hart. Apart
from some confused claims about adjudication, Fuller has two main
points. First, he thinks that it isn't enough for a legal system to rest on
customary social rules, since law could not guide behaviour without also
being at least minimally clear, consistent, public, prospective and so on --
that is, without exhibiting to some degree those virtues collectively called
“the rule of law.” It suffices to note that this is perfectly consistent with
law being source-based. Even if moral properties were identical with, or
supervened upon, these rule-of-law properties, they do so in virtue of their

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rule-like character, and not their law-like character. Whatever virtues
inhere in or follow from clear, consistent, prospective, and open practices
can be found not only in law but in all other social practices with those
features, including custom and positive morality. And these virtues are
minor: there is little to be said in favour of a clear, consistent, prospective,
public and impartially administered system of racial segregation, for
example. Fuller's second worry is that if law is a matter of fact, then we
are without an explanation of the duty to obey. He gloatingly asks how
“an amoral datum called law could have the peculiar quality of creating an
obligation to obey it”. One possibility he neglects is that it doesn't. The
fact that law claims to obligate is, of course, a different matter and is
susceptible to other explanations. But even if Fuller is right in his
unargued assumption, the “peculiar quality” whose existence he doubts is
a familiar feature of many moral practices. Compare promises: whether a
society has a practice of promising, and what someone has promised to
do, are matters of social fact. Yet promising creates moral obligations of
performance or compensation. An “amoral datum” may indeed figure,
together with other premises, in a sound argument to moral conclusions.

While Finnis and Fuller's views are thus compatible with the
positivist thesis, the same cannot be said of Ronald Dworkin's important
works. Positivism's most significant critic rejects the theory on every
conceivable level. He denies that there can be any general theory of the
existence and content of law; he denies that local theories of particular
legal systems can identify law without recourse to its merits, and he
rejects the whole institutional focus of positivism. A theory of law is for
Dworkin a theory of how cases ought to be decided and it begins, not with
an account of political organization, but with an abstract ideal regulating
the conditions under which governments may use coercive force over
their subjects. Force must only be deployed, he claims, in accordance with
principles laid down in advance. A society has a legal system only when,
and to the extent that, it honors this ideal, and its law is the set of all
considerations that the courts of such a society would be morally justified
in applying, whether or not those considerations are determined by any
source. To identify the law of a given society we must engage in moral
and political argument, for the law is whatever requirements are
consistent with an interpretation of its legal practices (subject to a
threshold condition of fit) that shows them to be best justified in light of
the animating ideal. In addition to those philosophical considerations,
Dworkin invokes two features of the phenomenology of judging, as he
sees it. He finds deep controversy among lawyers and judges about how
important cases should be decided, and he finds diversity in the
considerations that they hold relevant to deciding them. The controversy
suggests to him that law cannot rest on an official consensus, and the
diversity suggests that there is no single social rule that validates all
relevant reasons, moral and non-moral, for judicial decisions.

Dworkin's rich and complex arguments have attracted various lines

of reply from positivists. One response denies the relevance of the

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phenomenological claims. Controversy is a matter of degree, and a
consensus-defeating amount of it is not proved by the existence of
adversarial argument in the high courts, or indeed in any courts. As
important is the broad range of settled law that gives rise to few doubts
and which guides social life outside the courtroom. As for the diversity
argument, so far from being a refutation of positivism, this is an
entailment of it. Positivism identifies law, not with all valid reasons for
decision, but only with the source-based subset of them. It is no part of
the positivist claim that the rule of recognition tells us how to decide
cases, or even tells us all the relevant reasons for decision. Positivists
accept that moral, political or economic considerations are properly
operative in some legal decisions, just as linguistic or logical ones are.
Modus ponens holds in court as much as outside, but not because it was
enacted by the legislature or decided by the judges, and the fact that
there is no social rule that validates both modus ponens and also the
Municipalities Act is true but irrelevant. The authority of principles of logic
(or morality) is not something to be explained by legal philosophy; the
authority of acts of Parliament must be; and accounting for the difference
is a central task of the philosophy of law.

Other positivists respond differently to Dworkin's phenomenological

points, accepting their relevance but modifying the theory to
accommodate them. So-called “inclusive positivists” (e.g., Waluchow (to
whom the term is due), Coleman, Soper and Lyons) argue that the merit-
based considerations may indeed be part of the law, if they are explicitly
or implicitly made so by source-based considerations. For example,
Canada's constitution explicitly authorizes for breach of Charter rights,
“such remedy as the court considers appropriate and just in the
circumstances.” In determining which remedies might be legally valid,
judges are thus expressly told to take into account their morality. And
judges may develop a settled practice of doing this whether or not it is
required by any enactment; it may become customary practice in certain
types of cases. Reference to moral principles may also be implicit in the
web of judge-made law, for instance in the common law principle that no
one should profit from his own wrongdoing. Such moral considerations,
inclusivists claim, are part of the law because the sources make it so, and
thus Dworkin is right that the existence and content of law turns on its
merits, and wrong only in his explanation of this fact. Legal validity
depends on morality, not because of the interpretative consequences of
some ideal about how the government may use force, but because that is
one of the things that may be customarily recognized as an ultimate
determinant of legal validity. It is the sources that make the merits
relevant.

To understand and assess this response, some preliminary

clarifications are needed. First, it is not plausible to hold that the merits
are relevant to a judicial decision only when the sources make it so. It
would be odd to think that justice is a reason for decision only because
some source directs an official to decide justly. It is of the nature of justice

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that it properly bears on certain controversies. In legal decisions,
especially important ones, moral and political considerations are present
of their own authority; they do not need sources to propel them into
action. On the contrary, we expect to see a source, a statute, a decision,
or a convention when judges are constrained not to appeal directly to the
merits. Second, the fact that there is moral language in judicial decisions
does not establish the presence of moral tests for law, for sources come in
various guises. What sounds like moral reasoning in the courts is
sometimes really source-based reasoning. For example, when the
Supreme Court of Canada says that a publication is criminally “obscene”
only if it is harmful, it is not applying J.S. Mill's harm principle, for what
that court means by “harmful” is that it is regarded by the community as
degrading or intolerable. Those are source-based matters, not moral ones.
This is just one of many appeals to positive morality, i.e. to the moral
customs actually practiced by a given society, and no one denies that
positive morality may be a source of law. Moreover, it is important to
remember that law is dynamic and that even a decision that does apply
morality itself becomes a source of law, in the first instance for the parties
and possibly for others as well. Over time, by the doctrine of precedent
where it exists or through the gradual emergence of an interpretative
convention where it does not, this gives a factual edge to normative
terms. Thus, if a court decides that money damages are in some instances
not a “just remedy” then this fact will join with others in fixing what
“justice” means for these purposes. This process may ultimately detach
legal concepts from their moral analogs (thus, legal “murder” may require
no intention to kill, legal “fault” no moral blameworthiness, an “equitable”
remedy may be manifestly unfair, etc.)

Bearing in mind these complications, however, there undeniably

remains a great deal of moral reasoning in adjudication. Courts are often
called on to decide what would reasonable, fair, just, cruel, etc. by explicit
or implicit requirement of statute or common law, or because this is the
only proper or intelligible way to decide. Hart sees this as happening pre-
eminently in hard cases in which, owing to the indeterminacy of legal
rules or conflicts among them, judges are left with the discretion to make
new law. “Discretion,” however, may be a potentially misleading term
here. First, discretionary judgments are not arbitrary: they are guided by
merit-based considerations, and they may also be guided by law even
though not fully determined by it -- judges may be empowered to make
certain decisions and yet under a legal duty to make them in a particular
way, say, in conformity with the spirit of preexisting law or with certain
moral principles. Second, Hart's account might wrongly be taken to
suggest that there are fundamentally two kinds of cases, easy ones and
hard ones, distinguished by the sorts of reasoning appropriate to each. A
more perspicuous way of putting it would be to say that there are two
kinds of reasons that are operative in every case: source-based reasons
and non-source-based reasons. Law application and law creation are
continuous activities for, as Kelsen correctly argued, every legal decision
is partly determined by law and partly underdetermined: “The higher

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norm cannot bind in every direction the act by which it is applied. There
must always be more or less room for discretion, so that the higher norm
in relation to the lower one can only have the character of a frame to be
filled by this act”. This is a general truth about norms. There are infinitely
many ways of complying with a command to “close the door” (quickly or
slowly, with one's right hand or left, etc.) Thus, even an “easy case” will
contain discretionary elements. Sometimes such residual discretion is of
little importance; sometimes it is central; and a shift from marginal to
major can happen in a flash with changes in social or technological
circumstances. That is one of the reasons for rejecting a strict doctrine of
separation of powers -- Austin called it a “childish fiction” -- according to
which judges only apply and never make the law, and with it any literal
interpretation of Dworkin's ideal that coercion be deployed only according
to principles laid down in advance.

It has to be said, however, that Hart himself does not consistently

view legal references to morality as marking a zone of discretion. In a
passing remark in the first edition of The Concept of Law, he writes, “In
some legal systems, as in the United States, the ultimate criteria of legal
validity explicitly incorporate principles of justice or substantive moral
values …” This thought sits uneasily with other doctrines of importance to
his theory. For Hart also says that when judges exercise moral judgment
in the penumbra of legal rules to suppose that their results were already
part of existing law is “in effect, an invitation to revise our concept of what
a legal rule is …” The concept of a legal rule, that is, does not include all
correctly reasoned elaborations or determinations of that rule. Later,
however, Hart comes to see his remark about the U.S. constitution as
foreshadowing inclusive positivism (“soft positivism,” as he calls it). Hart's
reasons for this shift are obscure. He remained clear about how we should
understand ordinary statutory interpretation, for instance, where the
legislature has directed that an applicant should have a “reasonable time”
or that a regulator may permit only a “fair price:” these grant a bounded
discretion to decide the cases on their merits. Why then does Hart -- and
even more insistently, Waluchow and Coleman -- come to regard
constitutional adjudication differently? Is there any reason to think that a
constitution permitting only a “just remedy” requires a different analysis
than a statute permitting only a “fair rate?”

One might hazard the following guess. Some of these philosophers

think that constitutional law expresses the ultimate criteria of legal
validity: because unjust remedies are constitutionally invalid and void ab
initio, legally speaking they never existed. That being so, morality
sometimes determines the existence or content of law. If this is the
underlying intuition, it is misleading, for the rule of recognition is not to be
found in constitutions. The rule of recognition is the ultimate criterion (or
set of criteria) of legal validity. If one knows what the constitution of a
country is, one knows some of its law; but one may know what the rule of
recognition is without knowing any of its laws. You may know that acts of
the Bundestag are a source of law in Germany but not be able to name or

6
interpret a single one of them. And constitutional law is itself subject to
the ultimate criteria of systemic validity. Whether a statute, decision or
convention is part of a country's constitution can only be determined by
applying the rule of recognition. The provisions of the 14th Amendment to
the U.S. constitution, for example, are not the rule of recognition in the
U.S., for there is an intra-systemic answer to the question why that
Amendment is valid law. The U.S. constitution, like that of all other
countries, is law only because it was created in ways provided by law
(through amendment or court decision) or in ways that came to be
accepted as creating law (by constitutional convention and custom).
Constitutional cases thus raise no philosophical issue not already present
in ordinary statutory interpretation, where inclusive positivists seem
content with the theory of judicial discretion. It is, of course, open to them
to adopt a unified view and treat every explicit or implicit legal reference
to morality -- in cases, statutes, constitutions, and customs -- as
establishing moral tests for the existence of law. So we should consider
the wider question: why not regard as law everything referred to by law?

Exclusive positivists offer three main arguments for stopping at

social sources. The first and most important is that it captures and
systematizes distinctions we regularly make and that we have good
reason to continue to make. We assign blame and responsibility
differently when we think that a bad decision was mandated by the
sources than we do when we think that it flowed from a judge's exercise
of moral or political judgement. When considering who should be
appointed to the judiciary, we are concerned not only with their acumen
as jurists, but also with their morality and politics--and we take different
things as evidence of these traits. These are deeply entrenched
distinctions, and there is no reason to abandon them.

The second reason for stopping at sources is that this is

demonstrably consistent with key features of law's role in practical
reasoning. The most important argument to this conclusion is due to Raz.
Although law does not necessarily have legitimate authority, it lays claim
to it, and can intelligibly do so only if it is the kind of thing that could have
legitimate authority. It may fail, therefore, in certain ways only, for
example, by being unjust, pointless, or ineffective. But law cannot fail to
be a candidate authority, for it is constituted in that role by our political
practices. According to Raz, practical authorities mediate between
subjects and the ultimate reasons for which they should act. Authorities'
directives should be based on such reasons, and they are justified only
when compliance with the directives makes it more likely that people will
comply with the underlying reasons that apply to them. But they can do
that only if is possible to know what the directives require independent of
appeal to those underlying reasons. Consider an example. Suppose we
agree to resolve a dispute by consensus, but that after much discussion
find ourselves in disagreement about whether some point is in fact part of
the consensus view. It will do nothing to say that we should adopt it if it is
indeed properly part of the consensus. On the other hand, we could agree

6
to adopt it if it were endorsed by a majority vote, for we could determine
the outcome of a vote without appeal to our ideas about what the
consensus should be. Social sources can play this mediating role between
persons and ultimate reasons, and because the nature of law is partly
determined by its role in giving practical guidance, there is a theoretical
reason for stopping at source-based considerations.

The third argument challenges an underlying idea of inclusive

positivism, what we might call the Midas Principle. “Just as everything
King Midas touched turned into gold, everything to which law refers
becomes law … ” Kelsen thought that it followed from this principle that
“It is … possible for the legal order, by obliging the law-creating organs to
respect or apply certain moral norms or political principles or opinions of
experts to transform these norms, principles, or opinions into legal norms,
and thus into sources of law. (Though he regarded this transformation as
effected by a sort of tacit legislation.) If sound, the Midas Principle holds in
general and not only with respect to morality, as Kelsen makes clear.
Suppose then that the Income Tax Act penalizes overdue accounts at 8%
per annum. In a relevant case, an official can determine the content of a
legal obligation only by calculating compound interest. Does this make
mathematics part of the law? A contrary indication is that it is not subject
to the rules of change in a legal system -- neither courts nor legislators
can repeal or amend the law of commutativity. The same holds of other
social norms, including the norms of foreign legal systems. A conflict-of-
laws rule may direct a Canadian judge to apply Mexican law in a Canadian
case. The conflicts rule is obviously part of the Canadian legal system. But
the rule of Mexican law is not, for although Canadian officials can decide
whether or not to apply it, they can neither change it nor repeal it, and
best explanation for its existence and content makes no reference to
Canadian society or its political system. In like manner, moral standards,
logic, mathematics, principles of statistical inference, or English grammar,
though all properly applied in cases, are not themselves the law, for legal
organs have applicative but not creative power over them. The inclusivist
thesis is actually groping towards an important, but different, truth. Law is
an open normative system: it adopts and enforces many other standards,
including moral norms and the rules of social groups. There is no warrant
for adopting the Midas Principle to explain how or why it does this.

John Austin
John Austin (1790-1859) was the first English writer to define legal
terms. From 1826 to 1833 he was a professor of jurisprudence at the
University of London. His lectures on jurisprudence became standard for
England and the United States. He is considered by many to be the
creator of the school of analytical jurisprudence, as well as, more
specifically, the approach to law known as “legal positivism.” Austin's

6
particular command theory of law has been subject to pervasive criticism,
but its simplicity gives it an evocative power that cannot be ignored.

Austin was born to a Suffolk merchant family, and served briefly in the
military before beginning his legal training. He was called to the Bar in 1818, but
he took on few cases, and quit the practice of law in 1825. Austin shortly
thereafter obtained an appointment to the first Chair of Jurisprudence at the
recently established University of London. He prepared for his lectures by study
in Bonn, and evidence of the influence of continental legal and political ideas can
be found scattered throughout Austin's writings.

Austin's work was influential in the decades after his death— “within a few
years of his death it was clear that his work had established the study of
jurisprudence in England.” (Hart 1955: p. xvi) However, Austin's impact seemed
to subside substantially by the beginning of the twentieth century. Despite that
waning impact, “Austin's influence on the development of England of
[Jurisprudence] has been greater than that of any other writer.” (Hart 1955: p.
xvi) While Austin's work has continued significance in having established
analytical jurisprudence, his own theory is probably best known today as a foil
for the explanation of more nuanced approach to legal theory.

Analytical Jurisprudence and Legal Positivism

Austin's importance to legal theory lies elsewhere—his theorizing about

law was novel at four different levels of generality. First, he was arguably the
first writer to approach the theory of law analytically (as contrasted with
approaches to law more grounded in history or sociology, or arguments about
law which were secondary to more general moral and political theories).
Analytical jurisprudence emphasizes the analysis of key concepts, including
“law,” “(legal) right,” “(legal) duty,” and “legal validity.

Second, Austin's work should be seen against a background where most

English judges and commentators saw common-law reasoning (the incremental
creation or modification of law through judicial resolution of particular disputes)
as supreme, as declaring existing law, as discovering the requirements of
“Reason,” as the immemorial wisdom of popular “custom.” Such (Anglo-
American) theories about common law reasoning fit with a larger tradition of
theorizing about law (which had strong roots in continental European thought):
the idea that generally law did or should reflect community mores, “spirit,” or
custom. In general, one might look at many of the theorists prior to Austin as
exemplifying an approach that was more “community-oriented”—law as arising
from societal values or needs, or expressive of societal customs or morality. By
contrast, Austin is one of the first, and one of the most distinctive, theories that
views law as being “imperium oriented”—viewing law as mostly the rules
imposed from above from certain authorized (pedigreed) sources. More “top-
down” theories of law, like that of Austin, better fit the more centralized
governments (and the modern political theories about government) of modern
times.

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 Third, within analytical jurisprudence, Austin was the first systematic
exponent of a view of law known as “legal positivism.” Most of the important
theoretical work on law prior to Austin had treated jurisprudence as though it
were merely a branch of moral theory or political theory: asking how should the
state govern? (and when were governments legitimate?), and under what
circumstances did citizens have an obligation to obey the law? Austin
specifically, and legal positivism generally, offered a quite different approach to
law: as an object of “scientific” study (Austin 1879: pp. 1107-08), dominated
neither by prescription nor by moral evaluation. Subtle jurisprudential questions
aside, Austin's efforts to treat law systematically gained popularity in the late
19th century among English lawyers who wanted to approach their profession,
and their professional training, in a more serious and rigorous manner.

Austin's famous formulation of what could be called the “dogma” of

legal positivism is as follows:
The existence of law is one thing; its merit or demerit is another.
Whether it be or be not is one enquiry; whether it be or be not
conformable to an assumed standard, is a different enquiry. A
law, which actually exists, is a law, though we happen to dislike
it, or though it vary from the text, by which we regulate our
approbation and disapprobation. (Austin 1995: Lecture V, p. 157)

Fourth, Austin's version of legal positivism, a “command theory of law”

(which will be detailed in the next section), has also been influential.

Austin perplexed by the fact that there are rules of action that are morally
desirable but are not enacted into laws. Thus Austin held that the first concern of
jurisprudence is to examine the question of the nature of law without any
conscious regard for its goodness or badness, whether tested by the application
of the measure of utility, justice or equity. He wanted the separation of law and
morals and stated:

With the goodness or badness of law as tried by the test of utility (or by
any of the various tests which divide the opinions of mankind) it has no
immediate concern.

Austin's basic approach was to ascertain what can be said generally,

but still with interest, about all laws. Austin's analysis can be seen as
either a paradigm of, or a caricature of, analytical philosophy, in that his
discussions are dryly full of distinctions, but are thin in argument. The
modern reader is forced to fill in much of the meta-theoretical,
justificatory work, as it cannot be found in the text. Where Austin does
articulate his methodology and objective, it is a fairly traditional one: he
“endeavored to resolve a law (taken with the largest signification which
can be given to that term properly) into the necessary and essential
elements of which it is composed.” (Austin 1995: Lecture V, p. 117)
As to what is the core nature of law, Austin's answer is that laws
(”properly so called”) are commands of a sovereign. He clarifies the

6
concept of positive law (that is, man-made law) by analyzing the
constituent concepts of his definition, and by distinguishing law from other
concepts that are similar:
• “Commands” involve an expressed wish that something be done,
and “an evil” to be imposed if that wish is not complied with.
• Rules are general commands (applying generally to a class), as
contrasted with specific or individual commands (“drink wine today”
or “John Major must drink wine”).
• Positive law consists of those commands laid down by a sovereign
(or its agents), to be contrasted to other law-givers, like God's
general commands, and the general commands of an employer to
an employee.
• The “sovereign” is defined as a person (or determinate body of
persons) who receives habitual obedience from the bulk of the
population, but who does not habitually obey any other (earthly)
person or institution. Austin thought that all independent political
societies, by their nature, have a sovereign.
• Positive law should also be contrasted with “laws by a close
analogy” (which includes positive morality, laws of honor,
international law, customary law, and constitutional law) and “laws
by remote analogy” (e.g., the laws of physics).
(Austin 1995: Lecture I).

Austin also wanted to include within “the province of jurisprudence”

certain “exceptions,” items which did not fit his criteria but should
nonetheless be studied with other “laws properly so called”: repealing
laws, declarative laws, and “imperfect laws”—laws prescribing action but
without sanctions (a concept Austin ascribes to “Roman [law] jurists”).
(Austin 1995: Lecture I, p. 36)
In the criteria set out above, Austin succeeded in delimiting law and
legal rules from religion, morality, convention, and custom. However, also
excluded from “the province of jurisprudence” were customary law
(except to the extent that the sovereign had, directly or indirectly,
adopted such customs as law), public international law, and parts of
constitutional law. (These exclusions alone would make Austin's theory
problematic for most modern readers.)
Within Austin's approach, whether something is or is not “law”
depends on which people have done what: the question turns on an
empirical investigation, and it is a matter mostly of power, not of morality.
Of course, Austin is not arguing that law should not be moral, nor is he
implying that it rarely is. Austin is not playing the nihilist or the skeptic. He
is merely pointing out that there is much that is law that is not moral, and
what makes something law does nothing to guarantee its moral value.
“The most pernicious laws, and therefore those which are most opposed
to the will of God, have been and are continually enforced as laws by
judicial tribunals.” (Austin 1995: Lecture V, p. 158).

6
 It cannot be said that Austin intended to imply that positive law is
non-moral for, as Austin himself said, positive law is not immediately or
consciously concerned with morality. The fact that positive law happens to
be “just” by any of the various means or tests utilized for that purpose is
considered accidental since the law commands obedience regardless of its
goodness or badness. In another way of putting it positive law may be
moral but to say it is null and void because it is against morality or
contrary to natural law is absurd. The strict separation and distinction
between law and morals and yet upholds the supremacy of the law
regardless of its goodness and badness. For positivist jurisprudence, the
maxim dura lex sed lex ( The law may be harsh but it is the law) is indeed
correct.

Jeremy Bentham
Jeremy Bentham was an English philosopher and political radical. He
is primarily known today for his moral philosophy, especially his principle
of utilitarianism, which evaluates actions based upon their consequences.
The relevant consequences, in particular, are the overall happiness
created for everyone affected by the action. Influenced by many
enlightenment thinkers, especially empiricists such as John Locke and
David Hume, Bentham developed an ethical theory grounded in a largely
empiricist account of human nature. He famously held a hedonistic
account of both motivation and value according to which what is
fundamentally valuable and what ultimately motivates us is pleasure and
pain. Happiness, according to Bentham, is thus a matter of experiencing
pleasure and lack of pain.

Although he never practiced law, Bentham did write a great deal of

philosophy of law, spending most of his life critiquing the existing law and
strongly advocating legal reform. Throughout his work, he critiques
various natural accounts of law which claim, for example, that liberty,
rights, and so on exist independent of government. In this way, Bentham
arguably developed an early form of what is now often called "legal
positivism." Beyond such critiques, he ultimately maintained that putting
his moral theory into consistent practice would yield results in legal theory
by providing justification for social, political, and legal institutions.

Bentham's influence was minor during his life. But his impact was
greater in later years as his ideas were carried on by followers such as
John Stuart Mill, John Austin, and other consequentialists.

Influenced by the philosophies of the Enlightenment (such as

Beccaria, Helvétius, Diderot, D'Alembert, and Voltaire) and also by Locke
and Hume, Bentham's work combined an empiricist approach with a
rationalism that emphasized conceptual clarity and deductive argument.
Locke's influence was primarily as the author of the Enquiry Concerning
Human Understanding, and Bentham saw in him a model of one who
emphasized the importance of reason over custom and tradition and who

6
insisted on precision in the use of terms. Hume's influence was not so
much on Bentham's method as on his account of the underlying principles
of psychological associationism and on his articulation of the principle of
utility, which was then still often annexed to theological views.

Bentham's analytical and empirical method is especially obvious

when one looks at some of his main criticisms of the law and of moral and
political discourse in general. His principal target was the presence of
"fictions"—in particular, legal fictions. On his view, to consider any part or
aspect of a thing in abstraction from that thing is to run the risk of
confusion or to cause positive deceit. While, in some cases, such
"fictional" terms as "relation," "right," "power," and "possession" were of
some use, in many cases their original warrant had been forgotten, so
that they survived as the product of either prejudice or inattention. In
those cases where the terms could be "cashed out" in terms of the
properties of real things, they could continue to be used, but otherwise
they were to be abandoned. Still, Bentham hoped to eliminate legal
fictions as far as possible from the law, including the legal fiction that
there was some original contract that explained why there was any law at
all. He thought that, at the very least, clarifications and justifications could
be given that avoided the use of such terms.

For Bentham, morals and legislation can be described scientifically,

but such a description requires an account of human nature. Just as
nature is explained through reference to the laws of physics, so human
behavior can be explained by reference to the two primary motives of
pleasure and pain; this is the theory of psychological hedonism.

There is, Bentham admits, no direct proof of such an analysis of

human motivation—though he holds that it is clear that, in acting, all
people implicitly refer to it. At the beginning of the Introduction to the
Principles of Morals and Legislation, Bentham writes:

Nature has placed mankind under the governance of two sovereign

masters, pain and pleasure. It is for them alone to point out what we
ought to do, as well as to determine what we shall do. On the one hand
the standard of right and wrong, on the other the chain of causes and
effects, are fastened to their throne. They govern us in all we do, in all we
say, in all we think: every effort we can make to throw off our subjection,
will serve but to demonstrate and confirm it.

From this we see that, for Bentham, pleasure and pain serve not
only as explanations for action, but they also define one's good. It is, in
short, on the basis of pleasures and pains, which can exist only in
individuals, that Bentham thought one could construct a calculus of value.

Related to this fundamental hedonism is a view of the individual as

exhibiting a natural, rational self-interest—a psychological egoism. In his
"Remarks on Bentham's Philosophy" (1833), Mill cites Bentham's The

6
Book of Fallacies (London: Hunt, 1824, pp. 392-3) that "[i]n every human
breast... self-regarding interest is predominant over social interest; each
person's own individual interest over the interests of all other persons
taken together." Fundamental to the nature and activity of individuals,
then, is their own well-being, and reason—as a natural capability of the
person—is considered to be subservient to this end.

Bentham believed that the nature of the human person can be

adequately described without mention of social relationships. To begin
with, the idea of "relation" is but a "fictitious entity," though necessary for
"convenience of discourse." And, more specifically, he remarks that "the
community is a fictitious body," and it is but "the sum of the interests of
the several members who compose it." Thus, the extension of the term
"individual" is, in the main, no greater and no less than the biological
entity. Bentham's view, then, is that the individual—the basic unit of the
social sphere—is an "atom" and there is no "self" or "individual" greater
than the human individual. A person's relations with others—even if
important—are not essential and describe nothing that is, strictly
speaking, necessary to its being what it is.

Finally, the picture of the human person presented by Bentham is

based on a psychological associationism indebted to David Hartley and
Hume; Bentham's analysis of "habit" (which is essential to his
understanding of society and especially political society) particularly
reflects associationist presuppositions. On this view, pleasure and pain are
objective states and can be measured in terms of their intensity, duration,
certainty, proximity, fecundity and purity. This allows both for an objective
determination of an activity or state and for a comparison with others.

Bentham's understanding of human nature reveals, in short, a

psychological, ontological, and also moral individualism where, to extend
the critique of utilitarianism made by Graeme Duncan and John Gray
(1979), "the individual human being is conceived as the source of values
and as himself the supreme value."

The notion of liberty present in Bentham's account is what is now

generally referred to as "negative" liberty—freedom from external
restraint or compulsion. Bentham says that "[l]iberty is the absence of
restraint" and so, to the extent that one is not hindered by others, one has
liberty and is "free." Bentham denies that liberty is "natural" (in the sense
of existing "prior to" social life and thereby imposing limits on the state) or
that there is an a priori sphere of liberty in which the individual is
sovereign. In fact, Bentham holds that people have always lived in
society, and so there can be no state of nature (though he does
distinguish between political society and "natural society") and no "social
contract" (a notion which he held was not only unhistorical but
pernicious). Nevertheless, he does note that there is an important
distinction between one's public and private life that has morally
significant consequences, and he holds that liberty is a good—that, even

6
though it is not something that is a fundamental value, it reflects the
greatest happiness principle.

Correlative with this account of liberty, Bentham viewed law as

"negative." Given that pleasure and pain are fundamental to—indeed,
provide—the standard of value for Bentham, liberty is a good (because it
is "pleasant") and the restriction of liberty is an evil (because it is
"painful"). Law, which is by its very nature a restriction of liberty and
painful to those whose freedom is restricted, is a prima facie evil. It is only
so far as control by the state is limited that the individual is free. Law is,
Bentham recognized, necessary to social order and good laws are clearly
essential to good government. Indeed, perhaps more than Locke,
Bentham saw the positive role to be played by law and government,
particularly in achieving community well-being. To the extent that law
advances and protects one's economic and personal goods and that what
government exists is self-government, law reflects the interests of the
individual.

Unlike many earlier thinkers, Bentham held that law is not rooted in
a "natural law" but is simply a command expressing the will of the
sovereign. (This account of law, later developed by Austin, is
characteristic of legal positivism.) Thus, a law that commands morally
questionable or morally evil actions, or that is not based on consent, is
still law.

Bentham's views on rights are, perhaps, best known through the

attacks on the concept of "natural rights" that appear throughout his
work. These criticisms are especially developed in his Anarchical Fallacies
(a polemical attack on the declarations of rights issued in France during
the French Revolution), written between 1791 and 1795 but not published
until 1816, in French. Bentham's criticisms here are rooted in his
understanding of the nature of law. Rights are created by the law, and law
is simply a command of the sovereign. The existence of law and rights,
therefore, requires government. Rights are also usually (though not
necessarily) correlative with duties determined by the law and, as in
Hobbes, are either those which the law explicitly gives us or those within a
legal system where the law is silent. The view that there could be rights
not based on sovereign command and which pre-exist the establishment
of government is rejected.

According to Bentham, then, the term "natural right" is a

"perversion of language." It is "ambiguous," "sentimental" and "figurative"
and it has anarchical consequences. At best, such a "right" may tell us
what we ought to do; it cannot serve as a legal restriction on what we can
or cannot do. The term "natural right" is ambiguous, Bentham says,
because it suggests that there are general rights—that is, rights over no
specific object—so that one would have a claim on whatever one chooses.
The effect of exercising such a universal, natural "right" would be to
extinguish the right altogether, since "what is every man's right is no

6
man's right." No legal system could function with such a broad conception
of rights. Thus, there cannot be any general rights in the sense suggested
by the French declarations.

Moreover, the notion of natural rights is figurative. Properly

speaking, there are no rights anterior to government. The assumption of
the existence of such rights, Bentham says, seems to be derived from the
theory of the social contract. Here, individuals form a society and choose
a government through the alienation of certain of their rights. But such a
doctrine is not only unhistorical, according to Bentham, it does not even
serve as a useful fiction to explain the origin of political authority.
Governments arise by habit or by force, and for contracts (and,
specifically, some original contract) to bind, there must already be a
government in place to enforce them.

Finally, the idea of a natural right is "anarchical." Such a right,

Bentham claims, entails a freedom from all restraint and, in particular,
from all legal restraint. Since a natural right would be anterior to law, it
could not be limited by law, and (since human beings are motivated by
self-interest) if everyone had such freedom, the result would be pure
anarchy. To have a right in any meaningful sense entails that others
cannot legitimately interfere with one's rights, and this implies that rights
must be capable of enforcement. Such restriction, as noted earlier, is the
province of the law.

Bentham concludes, therefore, that the term "natural rights" is

"simple nonsense: natural and imprescriptible rights, rhetorical nonsense,
—nonsense upon stilts." Rights—what Bentham calls "real" rights—are
fundamentally legal rights. All rights must be legal and specific (that is,
having both a specific object and subject). They ought to be made
because of their conduciveness to "the general mass of felicity," and
correlatively, when their abolition would be to the advantage of society,
rights ought to be abolished. So far as rights exist in law, they are
protected; outside of law, they are at best "reasons for wishing there were
such things as rights." While Bentham's essays against natural rights are
largely polemical, many of his objections continue to be influential in
contemporary political philosophy.

Nevertheless, Bentham did not dismiss talk of rights altogether.

There are some services that are essential to the happiness of human
beings and that cannot be left to others to fulfill as they see fit, and so
these individuals must be compelled, on pain of punishment, to fulfill
them. They must, in other words, respect the rights of others. Thus,
although Bentham was generally suspicious of the concept of rights, he
does allow that the term is useful, and in such work as A General View of
a Complete Code of Laws, he enumerates a large number of rights. While
the meaning he assigns to these rights is largely stipulative rather than
descriptive, they clearly reflect principles defended throughout his work.

6
 There has been some debate over the extent to which the rights
that Bentham defends are based on or reducible to duties or obligations,
whether he can consistently maintain that such duties or obligations are
based on the principle of utility, and whether the existence of what
Bentham calls "permissive rights"—rights one has where the law is silent
—is consistent with his general utilitarian view. This latter point has been
discussed at length by H.L.A. Hart (1973) and David Lyons (1969).

Thomas Hobbes
The English philosopher Thomas Hobbes (1588-1679) is best known
for his political thought, and deservedly so. His vision of the world is
strikingly original and still relevant to contemporary politics. His main
concern is the problem of social and political order: how human beings
can live together in peace and avoid the danger and fear of civil conflict.
He poses stark alternatives: we should give our obedience to an
unaccountable sovereign (a person or group empowered to decide every
social and political issue). Otherwise what awaits us is a ‘state of nature’
that closely resembles civil war – a situation of universal insecurity, where
all have reason to fear violent death and where rewarding human
cooperation is all but impossible. One controversy has dominated
interpretations of Hobbes. Does he see human beings as purely self-
interested? Several passages support such a reading, leading some to
think that his political conclusions can be avoided if we adopt a more
realistic picture of human nature. However, most scholars now accept that
Hobbes himself had a much more complex view of human motivation. A
major theme below will be why the problems he poses cannot be avoided
simply by taking a less ‘selfish’ view of human nature.

Hobbes’s moral thought is difficult to disentangle from his politics.

On his view, what we ought to do depends greatly on the situation in
which we find ourselves. Where political authority is lacking (as in his
famous natural condition of mankind), our fundamental right seems to be
to save our skins, by whatever means we think fit. Where political
authority exists, our duty seems to be quite straightforward: to obey those
in power.

But we can usefully separate the ethics from the politics if we follow
Hobbes’s own division. For him ethics is concerned with human nature,
while political philosophy deals with what happens when human beings
interact. What, then, is Hobbes’s view of human nature?

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The Natural Condition of Mankind

The state of nature is “natural” in one specific sense only. For

Hobbes political authority is artificial: in the “natural” condition human
beings lack government, which is an authority created by men. What is
Hobbes’s reasoning here? He claims that the only authority that naturally
exists among human beings is that of a mother over her child, because
the child is so very much weaker than the mother (and indebted to her for
its survival). Among adult human beings this is invariably not the case.
Hobbes concedes an obvious objection, admitting that some of us are
much stronger than others. And although he’s very sarcastic about the
idea that some are wiser than others, he doesn’t have much difficulty with
the idea that some are fools and others are dangerously cunning.
Nonetheless, it’s almost invariably true that every human being is capable
of killing any other. Even the strongest must sleep; even the weakest
might persuade others to help him kill another. (Leviathan, xiii.1-2)
Because adults are “equal” in this capacity to threaten one another’s
lives, Hobbes claims there is no natural source of authority to order their
lives together. (He is strongly opposing arguments that established
monarchs have a natural or God-given right to rule over us.)

Thus, as long as human beings have not successfully arranged some

form of government, they live in Hobbes’s state of nature. Such a
condition might occur at the “beginning of time” (see Hobbes’s comments
on Cain and Abel, Leviathan, xiii.11, Latin version only), or in “primitive”
societies (Hobbes thought the American Indians lived in such a condition).
But the real point for Hobbes is that a state of nature could just as well
occur in seventeenth century England, should the King’s authority be
successfully undermined. It could occur tomorrow in every modern
society, for example, if the police and army suddenly refused to do their
jobs on behalf of government. Unless some effective authority stepped
into the King’s place (or the place of army and police and government),
Hobbes argues the result is doomed to be deeply awful, nothing less than
a state of war.

Why should peaceful cooperation be impossible without an

overarching authority? Hobbes provides a series of powerful arguments
that suggest it is extremely unlikely that human beings will live in security
and peaceful cooperation without government. (Anarchism, the thesis that
we should live without government, of course disputes these arguments.)
His most basic argument is threefold. (Leviathan, xiii.3-9) (i) He thinks we
will compete, violently compete, to secure the basic necessities of life and
perhaps to make other material gains. (ii) He argues that we will challenge
others and fight out of fear (”diffidence”), so as to ensure our personal
safety. (iii) And he believes that we will seek reputation (”glory”), both for
its own sake and for its protective effects (for example, so that others will
be afraid to challenge us).

6
 This is a more difficult argument than it might seem. Hobbes
does not suppose that we are all selfish, that we are all cowards, or that
we are all desperately concerned with how others see us. Two points,
though. First, he does think that some of us are selfish, some of us
cowardly, and some of us “vainglorious” (perhaps some people are of all
of these!). Moreover, many of these people will be prepared to use
violence to attain their ends – especially if there’s no government or
police to stop them. In this Hobbes is surely correct. Second, in some
situations it makes good sense, at least in the short term, to use violence
and to behave selfishly, fearfully or vaingloriously. If our lives seem to be
at stake, after all, we’re unlikely to have many scruples about stealing a
loaf of bread; if we perceive someone as a deadly threat, we may well
want to attack first, while his guard is down; if we think that there are lots
of potential attackers out there, it’s going to make perfect sense to get a
reputation as someone who shouldn’t be messed with. In Hobbes’s words,
“the wickedness of bad men also compels good men to have recourse, for
their own protection, to the virtues of war, which are violence and fraud.”
(De Cive, Epistle Dedicatory) As well as being more complex than first
appears, Hobbes’s argument becomes very difficult to refute.

Underlying this most basic argument is an important consideration

about insecurity. As we shall see Hobbes places great weight on contracts
(thus some interpreters see Hobbes as heralding a market society
dominated by contractual exchanges). In particular, he often speaks of
“covenants,” by which he means a contract where one party performs his
part of the bargain later than the other. In the state of nature such
agreements aren’t going to work. Only the weakest will have good reason
to perform the second part of a covenant, and then only if the stronger
party is standing over them. Yet a huge amount of human cooperation
relies on trust, that others will return their part of the bargain over time. A
similar point can be made about property, most of which we can’t carry
about with us and watch over. This means we must rely on others
respecting our possessions over extended periods of time. If we can’t do
this, then many of the achievements of human society that involve
putting hard work into land (farming, building) or material objects (the
crafts, or modern industrial production, still unknown in Hobbes’s time)
will be near impossible.

One can reasonably object to such points: Surely there are basic
duties to reciprocate fairly and to behave in a trustworthy manner? Even if
there’s no government providing a framework of law, judgment and
punishment, don’t most people have a reasonable sense of what is right
and wrong, which will prevent the sort of contract-breaking and
generalized insecurity that Hobbes is concerned with? Indeed, shouldn’t
our basic sense of morality prevent much of the greed, pre-emptive attack
and reputation-seeking that Hobbes stressed in the first place? This is the
crunch point of Hobbes’s argument, and it is here (if anywhere) that one
can accuse Hobbes of “pessimism.” He makes two claims. The first
concerns our duties in the state of nature (that is, the so-called “right of

6
nature”). The second follows from this, and is less often noticed: it
concerns the danger posed by our different and variable judgments of
what is right and wrong.

On Hobbes’s view the right of nature is quite simple to define.

Naturally speaking – that is, outside of civil society – we have a right to do
whatever we think will ensure our self-preservation. The worst that can
happen to us is violent death at the hands of others. If we have any rights
at all, if (as we might put it) nature has given us any rights whatsoever,
then the first is surely this: the right to prevent violent death befalling us.
But Hobbes says more than this, and it is this point that makes his
argument so powerful. We do not just have a right to ensure our self-
preservation: we each have a right to judge what will ensure our self-
preservation. And this is where Hobbes’s picture of man becomes
important. Hobbes has given us good reasons to think that human beings
rarely judge wisely. Yet in the state of nature no one is in a position to
successfully define what is good judgment. If I judge that killing you is a
sensible or even necessary move to safeguard my life, then – in Hobbes’s
state of nature – I have a right to kill you. Others might judge the matter
differently, of course. Almost certainly you’ll have quite a different view of
things (perhaps you were just stretching your arms, not raising a musket
to shoot me). Because we’re all insecure, because trust is more-or-less
absent, there’s little chance of our sorting out misunderstandings
peacefully, nor can we rely on some (trusted) third party to decide whose
judgment is right. We all have to be judges in our own causes, and the
stakes are very high indeed: life or death.

For this reason Hobbes makes very bold claims that sound totally
amoral. “To this war of every man against every man,” he says, “this also
is consequent [i.e., it follows]: that nothing can be unjust. The notions of
right and wrong, justice and injustice have no place [in the state of
nature].” (Leviathan, xiii.13) He further argues that in the state of nature
we each have a right to all things, “even to one another’s body’
(Leviathan, xiv.4). Hobbes is dramatizing his point, but the core is
defensible. If I judge that I need such and such – an object, another
person’s labor, another person’s death – to ensure my continued
existence, then in the state of nature, there is no agreed authority to
decide whether I’m right or wrong. New readers of Hobbes often suppose
that the state of nature would be a much nicer place, if only he were to
picture human beings with some basic moral ideas. But this is naïve:
unless people share the same moral ideas, not just at the level of general
principles but also at the level of individual judgment, then the challenge
he poses remains unsolved: human beings who lack some shared
authority are almost certain to fall into dangerous and deadly conflict.

There are different ways of interpreting Hobbes’s view of the

absence of moral constraints in the state of nature. Some think that
Hobbes is imagining human beings who have no idea of social interaction
and therefore no ideas about right and wrong. In this case, the natural

6
condition would be a purely theoretical construction, and would
demonstrate what both government and society do for human beings. (A
famous statement about the state of nature in De Cive (viii.1) might
support this interpretation: “looking at men as if they had just emerged
from the earth like mushrooms and grown up without any obligation to
each other…”) Another, complementary view reads Hobbes as a
psychological egoist, so that – in the state of nature as elsewhere – he is
merely describing the interaction of selfish and amoral human beings.

Others suppose that Hobbes has a much more complex picture of

human motivation, so that there is no reason to think moral ideas are
absent in the state of nature. In particular, it’s historically reasonable to
think that Hobbes invariably has civil war in mind, when he describes our
“natural condition.” If we think of civil war, we need to imagine people
who’ve lived together and indeed still do live together – huddled together
in fear in their houses, banded together as armies or guerrillas or groups
of looters. The problem here isn’t a lack of moral ideas – far from it –
rather that moral ideas and judgments differ enormously. This means (for
example) that two people who are fighting tooth and nail over a cow or a
gun can both think they’re perfectly entitled to the object and both think
they’re perfectly right to kill the other – a point Hobbes makes explicitly
and often. It also enables us to see that many Hobbesian conflicts are
about religious ideas or political ideals (as well as self-preservation and so
on) – as in the British Civil War raging while Hobbes wrote Leviathan, and
in the many violent sectarian conflicts throughout the world today.

In the end, though, whatever account of the state of nature and its
(a) morality we attribute to Hobbes, we must remember that it is meant to
function as a powerful and decisive threat: if we do not heed Hobbes’s
teachings and fail to respect existing political authority, then the natural
condition and its horrors of war await us.

The Laws of Nature and Social Contract

Hobbes thinks the state of nature is something we ought to avoid, at

any cost except our own self-preservation (this being our “right of
nature,” as we saw above). But what sort of “ought” is this? There are two
basic ways of interpreting Hobbes here. It might be a counsel of prudence:
avoid the state of nature, if you’re concerned to avoid violent death. In
this case Hobbes’s advice only applies to us (i) if we agree that violent
death is what we should fear most and should therefore avoid; and (ii) if
we agree with Hobbes that only an unaccountable sovereign stands
between human beings and the state of nature. This line of thought fits
well with an egoistic reading of Hobbes, but we’ll see that it faces serious
problems.

The other way of interpreting Hobbes is not without problems either.

This takes Hobbes to be saying that we ought, morally speaking, to avoid
the state of nature. We have a duty to do what we can to avoid this

6
situation arising, and a duty to end it, if at all possible. Hobbes often
makes his view clear, that we have such moral obligations. But then two
difficult questions arise: Why these obligations? And why are they
obligatory?

Hobbes frames the issues in terms of an older vocabulary, using the

idea of natural law that many ancient and medieval philosophers had
relied on. Like them, he thinks that human reason can discern some
eternal principles to govern our conduct. These principles are independent
of (though also complementary to) whatever moral instruction we might
get from God or religion. In other words, they are laws given by nature
rather than revealed by God. But Hobbes makes radical changes to the
content of these so-called laws of nature. In particular, he doesn’t think
that natural law provides any scope whatsoever to criticize or disobey the
actual laws made by a government. He thus disagrees with those
Protestants who thought that religious conscience might sanction
disobedience of “immoral” laws, and with Catholics who thought that the
commandments of the Pope have primacy over those of national political
authorities.

Although he sets out nineteen laws of nature, it is the first two that
are politically crucial. A third, that stresses the important of keeping to
contracts we have entered into, is important in Hobbes’s moral
justifications of obedience to the sovereign. (The remaining sixteen can be
quite simply encapsulated in the formula, “do as you would be done by.”
While the details are important for scholars of Hobbes, they do not affect
the overall theory and will be ignored here.)

The first law reads as follows:

Every man ought to endeavor peace, as far as he has hope of

obtaining it, and when he cannot obtain it, that he may seek and use all
helps and advantages of war. (Leviathan, xiv.4)

This repeats the points we have already seen about our “right of
nature,” so long as peace does not appear to be a realistic prospect. The
second law of nature is more complicated:

That a man be willing, when others are so too, as far-forth as for

peace and defense of himself he shall think it necessary, to lay down this
right to all things, and be contented with so much liberty against other
men, as he would allow other men against himself. (Leviathan, xiv.5)

What Hobbes tries to tackle here is the transition from the state of
nature to civil society. But how he does this is misleading and has
generated much confusion and disagreement. The way that Hobbes
describes this second law of nature makes it look as if we should all put
down our weapons, give up (much of) our “right of nature,” and jointly
authorize a sovereign who will tell us what is permitted and punish us if

6
we don’t obey. But the problem is obvious. If the state of nature is
anything like as bad as Hobbes has argued, then there’s just no way
people could ever make an agreement like this or put it into practice.

At the end of Leviathan, Hobbes seems to concede this point, saying

“there is scarce a commonwealth in the world whose beginnings can in
conscience be justified” (”Review and Conclusion,” 8). That is:
governments have invariably been foisted upon people by force and
fraud, not by collective agreement. But Hobbes means to defend every
existing government that is powerful enough to secure peace among its
subjects – not just a mythical government that’s been created by a
peaceful contract out of a state of nature. His basic claim is that we
should behave as if we had voluntarily entered into such a contract with
everyone else in our society – everyone else, that is, except the sovereign
authority.

In Hobbes’s myth of the social contract, everyone except the person

or group who will wield sovereign power lays down their “right to all
things.” They agree to limit drastically their right of nature, retaining only
a right to defend their lives in case of immediate threat. (How limited this
right of nature becomes in civil society has caused much dispute, because
deciding what is an immediate threat is a question of judgment. It
certainly permits us to fight back if the sovereign tries to kill us. But what
if the sovereign conscripts us as soldiers? What if the sovereign looks
weak and we doubt whether he can continue to secure peace…?) The
sovereign, however, retains his (or her, or their) right of nature, which we
have seen is effectively a right to all things – to decide what everyone else
should do, to decide the rules of property, to judge disputes and so on.
Hobbes concedes that there are moral limits on what sovereigns should
do (God might call a sovereign to account). However, since in any case of
dispute the sovereign is the only rightful judge – on this earth, that is –
those moral limits make no practical difference. In every moral and
political matter, the decisive question for Hobbes is always: who is to
judge? As we have seen, in the state of nature, each of us is judge in our
own cause, part of the reason why Hobbes thinks it is inevitably a state of
war. Once civil society exists, the only rightful judge is the sovereign.

Reason to Obey the Sovereign

If we had all made a voluntary contract, a mutual promise, then it

might seem half-way plausible to think we have an obligation to obey the
sovereign (although even this requires the claim that promising is a moral
value that overrides all others). If we have been conquered or, more
fortunately, have simply been born into a society with an established
political authority, this seems quite improbable. Hobbes has to make three
steps here, all of which have seemed weak to many of his readers. First of
all, he insists that promises made under threat of violence are

6
nonetheless freely made, and just as binding as any others. Second, he
has to put great weight on the moral value of promise keeping, which
hardly fits with the absence of duties in the state of nature. Third, he has
to give a story of how those of us born and raised in a political society
have made some sort of implied promise to each other to obey, or at
least, he has to show that we are bound (either morally or out of self-
interest) to behave as if we had made such a promise.

In the first place, Hobbes draws on his mechanistic picture of the

world, to suggest that threats of force do not deprive us of liberty. Liberty,
he says, is freedom of motion, and I am free to move whichever way I
wish, unless I am literally enchained. If I yield to threats of violence, that is
my choice, for physically I could have done otherwise. If I obey the
sovereign for fear of punishment or in fear of the state of nature, then that
is equally my choice. Such obedience then comes, for Hobbes, to
constitute a promise that I will continue to obey.

Second, promises carry a huge moral weight for Hobbes, as they do

in all social contract theories. The question, however, is why we should
think they are so important. Why should my (coerced) promise oblige me,
given the wrong you committed in threatening me and demanding my
valuables? Hobbes has no good answer to this question (but see below, on
egoistic interpretations of Hobbes’s thinking here). His theory suggests
that (in the state of nature) you could do me no wrong, as the right of
nature dictates that we all have a right to all things. Likewise, promises do
not oblige in the state of nature, inasmuch as they go against our right of
nature. In civil society, the sovereign’s laws dictate what is right and
wrong; if your threat was wrongful, then my promise will not bind me. But
as the sovereign is outside of the original contract, he sets the terms for
everyone else: so his threats create obligations.

As this suggests, Hobbesian promises are strangely fragile.

Implausibly binding so long as a sovereign exists to adjudicate and
enforce them, they lose all power should things revert to a state of nature.
Relatedly, they seem to contain not one jot of loyalty. To be logically
consistent, Hobbes needs to be politically implausible. Now there are
passages where Hobbes sacrifices consistency for plausibility, arguing we
have a duty to fight for our (former) sovereign even in the midst of civil
war. Nonetheless the logic of his theory suggests that, as soon as
government starts to weaken and disorder sets in, our duty of obedience
lapses. That is, when the sovereign power needs our support, because it is
no longer able to coerce us, there is no effective judge or enforcer of
covenants, so that such promises no longer override our right of nature.
This turns common sense on its head. Surely a powerful government can
afford to be challenged, for instance by civil disobedience or conscientious
objection? But when civil conflict and the state of nature threaten, in other
words when government is failing, then we might reasonably think that
political unity is as morally important as Hobbes always suggests. A
similar question of loyalty also comes up when the sovereign power has

6
been usurped – when Cromwell has supplanted the King, when a foreign
invader has ousted our government. Right from the start, Hobbes’s critics
saw that his theory makes turncoats into moral heroes: our allegiance
belongs to whoever happens to be holding the gun(s). Perversely, the only
crime the makers of a coup can commit is to fail.

Why does this problem come about? To overcome the fact that his
contract is a fiction, Hobbes is driven to construct a “sort of” promise out
of the fact of our subjugation to whatever political authority exists. He
stays wedded to the idea that obedience can only find a moral basis in a
“voluntary” promise, because only this seems to justify the almost
unlimited obedience and renunciation of individual judgment he’s
determined to prove. It is no surprise that Hobbes’s arguments creak at
every point: nothing could bear the weight of justifying such an overriding
duty.

All the difficulties in finding a reliable moral obligation to obey might

tempt us back to the idea that Hobbes is some sort of egoist. However,
the difficulties with this tack are even greater. There are two sorts of
egoism commentators have attributed to Hobbes: psychological and
ethical. The first theory says that human beings always act egoistically,
the second that they ought to act egoistically. Either view might support
this simple idea: we should obey the sovereign, because his political
authority is what keeps us from the evils of the natural condition. But the
basic problem with such egoistic interpretations, from the point of view of
Hobbes’s system of politics, is shown when we think about cases where
selfishness seems to conflict with the commands of the sovereign – for
example, where illegal conduct will benefit us or keep us from danger. For
a psychologically egoist agent, such behavior will be irresistible; for an
ethically egoist agent, it will be morally obligatory. Now, providing the
sovereign is sufficiently powerful and well-informed, he can prevent many
such cases arising by threatening and enforcing punishments of those
who disobey. Effective threats of punishment mean that obedience is in
our self-interest. But such threats will not be effective when we think our
disobedience can go undetected. After Orwell’s 1984we can imagine a
state that is so powerful that no reasonable person would ever think
disobedience could pay. But for Hobbes, such a powerful sovereign was
not even conceivable: he would have had to assume that there’d be many
situations where people could reasonably hope to “get away with it.”
(Likewise, under non-totalitarian, liberal politics, there are many situations
where illegal behavior is very unlikely to be detected or punished.) So, still
thinking of egoistic agents, the more people do get away with it, the more
reason others have to think they can do the same. Thus the problem of
disobedience threatens to “snowball,” undermining the sovereign and
plunging selfish agents back into the chaos of the state of nature.

In other words, sovereignty as Hobbes imagined it, and liberal

political authority as we know it, can only function where people feel some
additional motivation apart from pure self-interest. Moreover, there is

6
strong evidence that Hobbes was well aware of this. Part of Hobbes’s
interest in religion (a topic that occupies half of Leviathan) lies in its power
to shape human conduct. Sometimes this does seem to work through self-
interest, as in crude threats of damnation and hell-fire. But Hobbes’s main
interest lies in the educative power of religion, and indeed of political
authority. Religious practices, the doctrines taught in the universities (!),
the beliefs and habits inculcated by the institutions of government and
society: how these can encourage and secure respect for law and
authority seem to be even more important to Hobbes’s political solutions
than his theoretical social contract or shaky appeals to simple self-
interest.

What are we to conclude, then, given the difficulties in finding a

reliable moral or selfish justification for obedience? In the end, for Hobbes,
everything rides on the value of peace. Hobbes wants to say both that
civil order is in our “enlightened” self-interest, and that it is of
overwhelming moral value. Life is never going to be perfect for us, and life
under the sovereign is the best we can do. Recognizing this aspect
ofeveryone’s self-interest should lead us to recognize the moral value of
supporting whatever authority we happen to live under. For Hobbes, this
moral value is so great – and the alternatives so stark – that it should
override every threat to our self-interest except the imminent danger of
death. The million-dollar question is then: is a life of obedience to the
sovereign really the best human beings can hope for?

Life under Sovereign

Hobbes has definite ideas about the proper nature, scope and
exercise of sovereignty. Much that he says is cogent, and much of it can
reduce the worries we might have about living under this drastically
authoritarian sounding regime. Many commentators have stressed, for
example, the importance Hobbes places upon the rule of law. His claim
that much of our freedom, in civil society, “depends on the silence of the
laws” is often quoted (Leviathan, xxi.18). In addition, Hobbes makes many
points that are obviously aimed at contemporary debates about the rights
of King and Parliament – especially about the sovereign’s rights as regards
taxation and the seizure of property, and about the proper relation
between religion and politics. Some of these points continue to be
relevant, others are obviously anachronistic: evidently Hobbes could not
have imagined the modern state, with its vast bureaucracies, massive
welfare provision and complicated interfaces with society. Nor could he
have foreseen how incredibly powerful the state might become, meaning
that “sovereigns” such as Hitler or Stalin might starve, brutalize and kill
their subjects, to such an extent that the state of nature looks clearly
preferable.

However, the problem with all of Hobbes’s notions about

sovereignty is that – on his account – it is not Hobbes the philosopher, nor
we the citizens, who decide what counts as the proper nature, scope or

6
exercise of sovereignty. He faces a systematic problem: justifying any
limits or constraints on the sovereign involves making judgments about
moral or practical requirements. But one of his greatest insights, still little
recognized by many moral philosophers, is that any right or entitlement is
only practically meaningful when combined with a concrete judgment as
to what it dictates in some given case. Hobbes’s own failure, however
understandable, to foresee the growth of government and its powers only
supports this thought: that the proper nature, scope or exercise of
sovereignty is a matter of complex judgment. Alone among the people
who comprise Hobbes’s commonwealth, it is the sovereign who judges
what form he should appear in, how far he should reach into the lives of
his subjects, and how he should exercise his powers.

It should be added that the one part of his system that Hobbes
concedes not to be proven with certainty is just this question: who or what
should constitute the sovereign power. It was natural for Hobbes to think
of a King, or indeed a Queen (he was born under Elizabeth I). But he was
certainly very familiar with ancient forms of government, including
aristocracy (government by an elite) and democracy (government by the
citizens, who formed a relatively small group within the total population).
Hobbes was also aware that an assembly such as Parliament could
constitute a sovereign body. All have advantages and disadvantages, he
argues. But the unity that comes about from having a single person at the
apex, together with fixed rules of succession that pre-empt dispute about
who this person should be, makes monarchy Hobbes’s preferred option.

In fact, if we want to crack open Hobbes’s sovereign, to be able to

lay down concrete ideas about its nature and limits, we must begin with
the question of judgment. For Hobbes, dividing capacities to judge
between different bodies is tantamount to letting the state of nature
straight back in. “For what is it to divide the power of a commonwealth,
but to dissolve it; for powers divided mutually destroy each other.”
(Leviathan, xxix.12; cf De Cive, xii.5) Beyond the example of England in
the 1640s, Hobbes hardly bothers to argue the point, although it is crucial
to his entire theory. Always in his mind is the Civil War that arose when
Parliament claimed the right to judge rules of taxation, and thereby
prevented the King from ruling and making war as he saw fit, and when
churches and religious sects claimed prerogatives that went against the
King’s decisions.

Especially given modern experiences of the division of powers,

however, it’s easy to see that these examples are extreme and atypical.
We might recall the American constitution, where powers of legislation,
execution and case-by-case judgment are separated (to Congress,
President and the judiciary respectively) and counter-balance one
another. Each of these bodies is responsible for judging different
questions. There are often, of course, boundary disputes, as to whether
legislative, executive or judicial powers should apply to a given issue, and
no one body is empowered to settle this crucial question of judgment.

6
Equally obviously, however, such disputes have not led to a state of
nature (well, at least if we think of the US after the Civil War). For Hobbes
it is simply axiomatic that disputation as to who should judge important
social and political issues spells the end of the commonwealth. For us, it is
equally obvious that only a few extreme forms of dispute have this very
dangerous power. Dividing the powers that are important to government
need not leave a society more open to those dangerous conflicts. Indeed,
many would now argue that political compromises which provide different
groups and bodies with independent space to judge certain social or
political issues can be crucial for preventing disputes from escalating into
violent conflict or civil war.

David Hume
David Hume was the most important philosopher who to ever write
in English. He was the last of the great triumvirate of “British empiricists”.
He was also well-known in his own time as an historian and essayist.
Today, philosophers recognize Hume as a precursor of contemporary
cognitive science, as well as one of the most thoroughgoing exponents of
philosophical naturalism.

Hume's moral theory is of lasting importance in the history of moral

philosophy both for its originality and for its influence on later moral
theories. Hume introduced the term "utility" into our moral vocabulary,
and his theory is the immediate forerunner to the classic utilitarian views
of Bentham and Mill. Hume is famous for the position that we cannot
derive ought from is that is, the view that statements of moral obligation
cannot simply be deduced from statements of fact. Some contemporary
moral philosophers see Hume as an early proponent of the metaethical
view that moral judgments principally express our feelings. What is
perhaps less well-known is that Hume's moral theory is the first in modern
philosophy to be completely secular, without reference to God's will, a
divine creative plan, or an afterlife. Hume also directly argues that key
moral values are matters of social convention. These views spawned both
praise and indignation in writings of commentators over the years.

Against the moral rationalists the intellectualists of moral philosophy

who hold that moral judgments are based on reason, Hume maintains that
it is difficult even to make their hypotheses intelligible. Reason, Hume
argues, judges either of matters of fact or of relations. Morality never
consists in any single matter of fact that could be immediately perceived,

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intuited, or grasped by reason alone; morality for rationalists must
therefore involve the perception of relations. But inanimate objects and
animals can bear the same relations to one another that humans can,
though we don't draw the same moral conclusions from determining that
objects or animals are in a given relation as we do when humans are in
that same relation. Distinguishing these cases requires more than reason
alone can provide. Even if we could determine an appropriate subject-
matter for the moral rationalist, it would still be the case that, after
determining that a matter of fact or a relation obtains, the understanding
has no more room to operate, so the praise or blame that follows can't be
the work of reason.

Reason, Hume maintains, can at most inform us of the tendencies of

actions. It can recommend means for attaining a given end, but it can't
recommend ultimate ends. Reason can provide no motive to action, for
reason alone is insufficient to produce moral blame or approbation. We
need sentiment to give a preference to the useful tendencies of actions.

Finally, the moral rationalists' account of justice fares no better.

Justice can't be determined by examining a single case, since the
advantage to society of a rule of justice depends on how it works in
general under the circumstances in which it is introduced

Pascual,C. Introduction to Legal Philosophy.1997.

Stanford Encyclopaedia of Philosophy