Thomas Hobbes on Legal Positivism - Dictionary of Arguments
Höffe I 221
Legal Positivism/Hobbes/Höffe: [Hobbes is regarded as the] ancestor of modern legal and at the same time state positivism, i.e. an opponent of that legal thinking which, under titles such as "divine law", "natural law" and "law of reason", clearly limits the arbitrariness of legislators and rulers.
The imperative or command theory of law is regarded as proof.
Höffe: [Hobbes is concerned with something else]:
HobbesVs "collective reason": Hobbes strongly objects to this trust, at length in his posthumous dialogue on English law.
English law: This consists of an individual case law (precedent law), which is called common law in the sense of common law because, after the Norman invasion (1066), it is based on the verdicts of royal judges and asserts itself against regional peculiarities.
Höffe I 222
Imperative Theory/Command Theory/HobbesVsTradition: Hobbes contrasts this with the theory of imperatives in the most extensive chapter of the first two parts of the Leviathan, in chapter 26. Its concise basic thesis, known from the Roman poet Juvenal (Satires 6., 223), belongs to the basic knowledge of the humanistically educated. It says: Not a truth makes a law but an authority, ("sed auctoritas, non veritas, facit legem": chap. 26).
Forerunner: The command character alluded to therein has long been advocated in legal theory. Laws/Seneca: Seneca, for example, in his Moral Letters to Lucilius, writes that a law commands that it does not argue or discuss ("llexl iubeat, non disputet", Letter No. 94).
VsHobbes: At first sight the character of the command is plausible, especially Hobbes' criticism of the assumption that the law is a piece of advice ("counsel"). On closer examination, however, concerns do emerge. For example, orders consist of concrete requests, whereas a law regulates a multitude of concrete cases. One can, however, set aside the command moment and concentrate on Hobbes' formula "not the truth, but authority". It does not contain any positivist theory of law, but emphasizes three minimal conditions in ingenious conciseness:
1) First, legal provisions are not theoretical objects waiting to be discovered; they are rather produced by man ("facit").
2) Secondly, the truth that Hobbes rejects as a ground for validity is an insight that is not in itself a ground for validity. Hobbes here rejects a legal moralism which considers mere insight into injustice to be a sufficient argument for declaring the relevant law invalid.
3) The third condition, Hobbes' own thesis "validity by virtue of authority", is based on a multidimensional concept. "Authority" means an "author", i.e. originator and will, who has the power to enforce his will. In contrast to organized crime, power is not violentia, pure violence, but potestas, an authorized violence. Thanks to authorization, a legal system becomes legal: the decision once it has come into force remains part of the existing law as long as no new decision has been made. >Authority/Hobbes._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Leviathan: With selected variants from the Latin edition of 1668 Cambridge 1994
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