123-507: De Cive ("On the Citizen") is one of Thomas Hobbes 's major works. The book was published originally in Latin from Paris in 1642, followed by two further Latin editions in 1647 from Amsterdam . The English translation of the work made its first appearance four years later (London 1651) under the title Philosophicall rudiments concerning government and society . It anticipates themes of
246-484: A companion to the younger William Cavendish and they both took part in a grand tour of Europe between 1610 and 1615. Hobbes was exposed to European scientific and critical methods during the tour, in contrast to the scholastic philosophy that he had learned in Oxford. In Venice, Hobbes made the acquaintance of Fulgenzio Micanzio , an associate of Paolo Sarpi , a Venetian scholar and statesman. His scholarly efforts at
369-430: A good reputation in philosophic circles and in 1645 was chosen with Descartes, Gilles de Roberval and others to referee the controversy between John Pell and Longomontanus over the problem of squaring the circle . The English Civil War began in 1642, and when the royalist cause began to decline in mid-1644, many royalists came to Paris and were known to Hobbes. This revitalised Hobbes's political interests, and
492-410: A law, especially when the "particular" law of one's own city was adverse to the case being made, not that there actually was such a law. Aristotle, moreover, considered certain candidates for a universally valid, natural law to be wrong. Aristotle's theoretical paternity of the natural law tradition is consequently disputed. Thomas Aquinas is the foremost classical proponent of natural theology , and
615-540: A moral virtue derived as the mean between opposing vices, just like every other virtue he describes. His longest discussion of his theory of justice occurs in Nicomachean Ethics and begins by asking what sort of mean a just act is. He argues that the term "justice" actually refers to two different but related ideas: general justice and particular justice. When a person's actions toward others are completely virtuous in all matters, Aristotle calls them "just" in
738-469: A new theory of jurisprudence that has developed since the 1970s. The theory can generally be traced to American legal realism and is considered "the first movement in legal theory and legal scholarship in the United States to have espoused a committed Left political stance and perspective". It holds that the law is largely contradictory, and can be best analyzed as an expression of the policy goals of
861-481: A norm. Joseph Raz's theory of legal positivism argues against the incorporation of moral values to explain law's validity. In Raz's 1979 book The Authority of Law , he criticised what he called the "weak social thesis" to explain law. He formulates the weak social thesis as "(a) Sometimes the identification of some laws turn on moral arguments, but also with, (b) In all legal systems the identification of some law turns on moral argument." Raz argues that law's authority
984-428: A pivotal book on Hart (second edition published in 2008), which further refined and offered some important criticisms that led MacCormick to develop his own theory (the best example of which is his Institutions of Law , 2007). Other important critiques include those of Ronald Dworkin , John Finnis, and Joseph Raz . In recent years, debates on the nature of law have become increasingly fine-grained. One important debate
1107-537: A result, the family was left in the care of Thomas Sr.'s older brother, Francis, a wealthy glove manufacturer with no family of his own. Hobbes was educated at Westport church from age four, went to the Malmesbury school , and then to a private school kept by a young man named Robert Latimer, a graduate of the University of Oxford . Hobbes was a good pupil, and between 1601 and 1602 he went to Magdalen Hall ,
1230-429: A sister, Anne. Although Thomas Hobbes's childhood is unknown to a large extent, as is his mother's name, it is known that Hobbes's father, Thomas Sr., was the vicar of both Charlton and Westport. Hobbes's father was uneducated, according to John Aubrey , Hobbes's biographer, and he "disesteemed learning." Thomas Sr. was involved in a fight with the local clergy outside his church, forcing him to leave London . As
1353-581: A sovereign, to whom people have a habit of obedience". H. L. A. Hart criticized Austin and Bentham's early legal positivism because the command theory failed to account for individual's compliance with the law. Hans Kelsen is considered one of the preeminent jurists of the 20th century and has been highly influential in Europe and Latin America, although less so in common law countries. His Pure Theory of Law describes law as "binding norms", while at
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#17327718657071476-422: A system of law, or to give it our respect. Thus, the law must have a morality that goes beyond the societal rules under which laws are made. Sophisticated positivist and natural law theories sometimes resemble each other and may have certain points in common. Identifying a particular theorist as a positivist or a natural law theorist sometimes involves matters of emphasis and degree, and the particular influences on
1599-532: A theory of ius gentium (law of nations), and thus is an important figure in the transition to modernity. He extrapolated his ideas of legitimate sovereign power to international affairs, concluding that such affairs ought to be determined by forms respecting of the rights of all and that the common good of the world should take precedence before the good of any single state. This meant that relations between states ought to pass from being justified by force to being justified by law and justice. Some scholars have upset
1722-516: A translation of four books of the Odyssey into "rugged" English rhymes that in 1673 led to a complete translation of both Iliad and Odyssey in 1675. In October 1679 Hobbes suffered a bladder disorder , and then a paralytic stroke , from which he died on 4 December 1679, aged 91, at Hardwick Hall , owned by the Cavendish family. His last words were said to have been "A great leap in
1845-590: A tutor and secretary to both men. The 1st Earl's younger brother, Charles Cavendish, had two sons who were patrons of Hobbes. The elder son, William Cavendish , later 1st Duke of Newcastle , was a leading supporter of Charles I during the Civil War in which he personally financed an army for the king, having been governor to the Prince of Wales , Charles James, Duke of Cornwall. It was to this William Cavendish that Hobbes dedicated his Elements of Law . Hobbes became
1968-417: Is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question from normative and evaluative questions of what ought to be done. The most important questions of analytic jurisprudence are: "What are laws?"; "What is the law?"; "What is the relationship between law and power/sociology?"; and "What is the relationship between law and morality?" Legal positivism
2091-411: Is a necessary truth that there are vices that a legal system cannot possibly have (for example, it cannot commit rape or murder). Legal realism is the view that a theory of law should be descriptive and account for the reasons why judges decide cases as they do. Legal realism had some affinities with the sociology of law and sociological jurisprudence. The essential tenet of legal realism is that all law
2214-416: Is based on "first principles": ... this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this ... The desires to live and to procreate are counted by Aquinas among those basic (natural) human values on which all other human values are based. Francisco de Vitoria was perhaps the first to develop
2337-496: Is commonly said that Hobbes's views on human nature were influenced by his times. The English Civil War and the Cromwellian dictatorship had taken place; and, in reacting to that, Hobbes felt that absolute authority vested in a monarch, whose subjects obeyed the law, was the basis of a civilized society. John Austin and Jeremy Bentham were early legal positivists who sought to provide a descriptive account of law that describes
2460-425: Is conceptually distinct from morality. While law might contain morality, the separability thesis states that "it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so." Legal positivists disagree about the extent of the separability thesis. Exclusive legal positivists, notably Joseph Raz , go further than the standard thesis and deny that it
2583-485: Is from this cultural movement that Justinian 's Corpus Juris Civilis was born. Modern jurisprudence began in the 18th century and was based on the first principles of natural law , civil law , and the law of nations . Natural law holds that there are rational objective limits to the power of rulers, the foundations of law are accessible through reason, and it is from these laws of nature that human laws gain force. The moral theory of natural law asserts that law
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#17327718657072706-528: Is identifiable purely through social sources, without reference to moral reasoning. This view he calls "the sources thesis". Raz suggests that any categorisation of rules beyond their role as authority is better left to sociology than to jurisprudence. Some philosophers used to contend that positivism was the theory that held that there was "no necessary connection" between law and morality; but influential contemporary positivists—including Joseph Raz, John Gardner , and Leslie Green —reject that view. Raz claims it
2829-471: Is impossible". There is no doctrine of separation of powers in Hobbes's discussion. He argues that any division of authority would lead to internal strife, jeopardizing the stability provided by an absolute sovereign. According to Hobbes, the sovereign must control civil, military, judicial and ecclesiastical powers, even the words. In 1654 a small treatise, Of Liberty and Necessity , directed at Hobbes,
2952-730: Is indicated. Finally, in the third part, he writes about religion. De Cive was finished in November 1641 – before the English Civil War (thus arguments repeated a decade later in Leviathan cannot exclusively be influenced by that war). The book was published in Latin in 1642; a revised edition appeared in 1647. It was translated into English, entitled Philosophicall Rudiments Concerning Government and Society (published in 1651). John Aubrey testifies that Hobbes translated part of
3075-446: Is inherent in nature and constitutive of morality, at least in part, and that an objective moral order, external to human legal systems, underlies natural law. On this view, while legislators can enact and even successfully enforce immoral laws, such laws are legally invalid. The view is captured by the maxim: " an unjust law is no law at all ", where 'unjust' means 'contrary to the natural law.' Natural law theory has medieval origins in
3198-424: Is made by humans and thus should account for reasons besides legal rules that led to a legal decision. There are two separate schools of legal realism: American legal realism and Scandinavian legal realism. American legal realism grew out of the writings of Oliver Wendell Holmes . At the start of Holmes's The Common Law , he claims that "[t]he life of the law has not been logic: it has been experience". This view
3321-445: Is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is worst of all, continual fear, and danger of violent death; and
3444-554: Is possible for morality to be a part of law at all. The discretion thesis states that judges create new law when they are given discretion to adjudicate cases where existing law underdetermines the result. Hobbes was a social contractarian and believed that the law had peoples' tacit consent. He believed that society was formed from a state of nature to protect people from the state of war that would exist otherwise. In Leviathan , Hobbes argues that without an ordered society life would be "solitary, poor, nasty, brutish and short." It
3567-553: Is still widespread disagreement about the exact significance of Hobbes's unusual views on religion. As Martinich has pointed out, in Hobbes's time the term "atheist" was often applied to people who believed in God but not in divine providence , or to people who believed in God but also maintained other beliefs that were considered to be inconsistent with such belief or judged incompatible with orthodox Christianity. He says that this "sort of discrepancy has led to many errors in determining who
3690-472: Is the dominant theory, although there is a growing number of critics who offer their own interpretations. Historical jurisprudence came to prominence during the debate on the proposed codification of German law . In his book On the Vocation of Our Age for Legislation and Jurisprudence , Friedrich Carl von Savigny argued that Germany did not have a legal language that would support codification because
3813-451: Is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values; as well as the relationship between law and other fields of study, including economics , ethics , history , sociology , and political philosophy . Modern jurisprudence began in the 18th century and was based on the first principles of natural law , civil law , and
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3936-420: Is within legal positivism. One school is sometimes called "exclusive legal positivism" and is associated with the view that the legal validity of a norm can never depend on its moral correctness. A second school is labeled "inclusive legal positivism", a major proponent of which is Wil Waluchow, and is associated with the view that moral considerations may , but do not necessarily, determine the legal validity of
4059-530: The Nicomachean Ethics (Book IV of the Eudemian Ethics ). Aquinas's influence was such as to affect a number of early translations of these passages, though more recent translations render them more literally. Aristotle's theory of justice is bound up in his idea of the golden mean . Indeed, his treatment of what he calls "political justice" derives from his discussion of "the just" as
4182-588: The Council of State , he was allowed to subside into private life in Fetter Lane . In 1658, Hobbes published the final section of his philosophical system, completing the scheme he had planned more than 19 years before. De Homine consisted for the most part of an elaborate theory of vision. The remainder of the treatise dealt partially with some of the topics more fully treated in the Human Nature and
4305-552: The Daoists , Confucians , and Legalists all had competing theories of jurisprudence. Jurisprudence in ancient Rome had its origins with the periti —experts in the jus mos maiorum (traditional law), a body of oral laws and customs. Praetors established a working body of laws by judging whether or not singular cases were capable of being prosecuted either by the edicta , the annual pronunciation of prosecutable offences, or in extraordinary situations, additions made to
4428-617: The De Cive was republished and more widely distributed. The printing began in 1646 by Samuel de Sorbiere through the Elsevier press in Amsterdam with a new preface and some new notes in reply to objections. In 1647, Hobbes took up a position as mathematical instructor to the young Charles, Prince of Wales , who had come to Paris from Jersey around July. This engagement lasted until 1648 when Charles went to Holland. The company of
4551-586: The High Court of Commission had been put down, there remained no court of heresy at all to which he was amenable, and that nothing could be heresy except opposing the Nicene Creed , which, he maintained, Leviathan did not do. The only consequence that came of the bill was that Hobbes could never thereafter publish anything in England on subjects relating to human conduct. The 1668 edition of his works
4674-475: The Leviathan . In addition to publishing some controversial writings on mathematics, including disciplines like geometry, Hobbes also continued to produce philosophical works. From the time of the Restoration , he acquired a new prominence; "Hobbism" became a byword for all that respectable society ought to denounce. The young king, Hobbes's former pupil, now Charles II, remembered Hobbes and called him to
4797-424: The edicta . A iudex (originally a magistrate , later a private individual appointed to judge a specific case ) would then prescribe a remedy according to the facts of the case. The sentences of the iudex were supposed to be simple interpretations of the traditional customs, but—apart from considering what traditional customs applied in each case—soon developed a more equitable interpretation, coherently adapting
4920-663: The law of nations . Contemporary philosophy of law addresses problems internal to law and legal systems and problems of law as a social institution that relates to the larger political and social context in which it exists. Jurisprudence can be divided into categories both by the type of question scholars seek to answer and by the theories of jurisprudence, or schools of thought, regarding how those questions are best answered: The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Whereas lawyers are interested in what
5043-407: The squaring of the circle . This all led mathematicians to target him for polemics and sparked John Wallis to become one of his most persistent opponents. From 1655, the publishing date of De Corpore , Hobbes and Wallis continued name-calling and bickering for nearly a quarter of a century, with Hobbes failing to admit his error to the end of his life. After years of debate, the spat over proving
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5166-485: The state of nature . In that state, each person would have a right, or license, to everything in the world. This, Hobbes argues, would lead to a "war of all against all" ( bellum omnium contra omnes ). The description contains what has been called one of the best-known passages in English philosophy, which describes the natural state humankind would be in, were it not for political community: In such condition, there
5289-529: The American legal realists of the early twentieth century, legal realism sought to describe the way judges decide cases. For legal realists such as Jerome Frank , judges start with the facts before them and then move to legal principles. Before legal realism, theories of jurisprudence turned this method around where judges were thought to begin with legal principles and then look to facts. It has become common today to identify Justice Oliver Wendell Holmes Jr., as
5412-459: The Dean of Harvard Law School , used this term to characterise his legal philosophy . In the United States, many later writers followed Pound's lead or developed distinctive approaches to sociological jurisprudence. In Australia, Julius Stone strongly defended and developed Pound's ideas. In the 1930s, a significant split between the sociological jurists and the American legal realists emerged. In
5535-523: The Earl of Devonshire, died of the plague , and his widow, the countess Christian , dismissed Hobbes. Hobbes soon (in 1629) found work as a tutor to Gervase Clifton , the son of Sir Gervase Clifton, 1st Baronet , and continued in this role until November 1630. He spent most of this time in Paris. Thereafter, he again found work with the Cavendish family, tutoring William Cavendish, 3rd Earl of Devonshire ,
5658-939: The autonomy of the state in temporal affairs. When he returned to England in 1615, William Cavendish maintained correspondence with Micanzio and Sarpi, and Hobbes translated the latter's letters from Italian, which were circulated among the Duke's circle. Editions compiled by William Molesworth. Pp. 193–210 in Elements , Appendix I. pp. 211–226 in Elements , Appendix II. Pp. 147–228 in Rivista critica di storia della filosofia 18 pp. 10–27 in Hobbes's Thucydides pp. 10–27 in Hobbes's Thucydides pp. 729–738 in Rivista di storia della filosofia 43 Jurisprudence Jurisprudence , also known as theory of law or philosophy of law ,
5781-411: The basis of being analogous to the laws of physical science. Natural law is often contrasted to positive law which asserts law as the product of human activity and human volition. Another approach to natural-law jurisprudence generally asserts that human law must be in response to compelling reasons for action. There are two readings of the natural-law jurisprudential stance. Aristotle is often said to be
5904-407: The better-known Leviathan . The famous phrase bellum omnium contra omnes ("war of all against all") appeared first in De Cive . De Cive is the first of a trilogy of works written by Hobbes dealing with human knowledge , the other two works in the trilogy being De Corpore ("On the body"), published in 1655 and De Homine ("On man"), published in 1658. Because of the political turmoil of
6027-523: The book of Mr. Hobbes called the Leviathan ." Hobbes was terrified at the prospect of being labelled a heretic , and proceeded to burn some of his compromising papers. At the same time, he examined the actual state of the law of heresy. The results of his investigation were first announced in three short Dialogues added as an Appendix to his Latin translation of Leviathan , published in Amsterdam in 1668. In this appendix, Hobbes aimed to show that, since
6150-532: The broad outlines and many of the details of [Hobbes'] own thought." It has been argued that three of the discourses in the 1620 publication known as Horae Subsecivae: Observations and Discourses also represent the work of Hobbes from this period. Although he did associate with literary figures like Ben Jonson and briefly worked as Francis Bacon 's amanuensis , translating several of his Essays into Latin, he did not extend his efforts into philosophy until after 1629. In June 1628, his employer Cavendish, then
6273-468: The charge in 1658 with Castigations of Mr Hobbes's Animadversions , and also included a bulky appendix entitled The Catching of Leviathan the Great Whale . Hobbes opposed the existing academic arrangements, and assailed the system of the original universities in Leviathan . He went on to publish De Corpore , which contained not only tendentious views on mathematics but also an erroneous proof of
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#17327718657076396-468: The content of legal concepts using the methods of social science , analytical jurisprudence seeks to provide a general account of the nature of law through the tools of conceptual analysis . The account is general in the sense of targeting universal features of law that hold at all times and places. Analytic, or clarificatory , jurisprudence takes a neutral point of view and uses descriptive language when referring to various aspects of legal systems. This
6519-491: The coterie around Mersenne and wrote a critique of the Meditations on First Philosophy of René Descartes , which was printed as third among the sets of "Objections" appended, with "Replies" from Descartes, in 1641. A different set of remarks on other works by Descartes succeeded only in ending all correspondence between the two. Hobbes also extended his own works in a way, working on the third section, De Cive , which
6642-459: The court to grant him a pension of £100. The king was important in protecting Hobbes when, in 1666, the House of Commons introduced a bill against atheism and profaneness. That same year, on 17 October 1666, it was ordered that the committee to which the bill was referred "should be empowered to receive information touching such books as tend to atheism, blasphemy and profaneness... in particular...
6765-610: The dark", uttered in his final conscious moments. His body was interred in St John the Baptist's Church, Ault Hucknall , in Derbyshire. Hobbes, influenced by contemporary scientific ideas, had intended for his political theory to be a quasi-geometrical system, in which the conclusions followed inevitably from the premises. The main practical conclusion of Hobbes's political theory is that state or society cannot be secure unless at
6888-451: The destruction and brutality of the English Civil War from 1642 to 1651 between Parliamentarians and Royalists, which heavily influenced his advocacy for governance by an absolute sovereign in Leviathan , as the solution to human conflict and societal breakdown. Aside from social contract theory, Leviathan also popularized ideas such as the state of nature ( "war of all against all" ) and laws of nature . His other major works include
7011-502: The difference between civil and criminal law. In addition to analytic jurisprudence, legal philosophy is also concerned with normative theories of law. "Normative jurisprudence involves normative, evaluative, and otherwise prescriptive questions about the law." The English word is derived from the Latin, iurisprudentia . Iuris is the genitive form of ius meaning law, and prudentia meaning prudence (also: discretion, foresight, forethought, circumspection). It refers to
7134-446: The disposal of an absolute sovereign. From this follows the view that no individual can hold rights of property against the sovereign, and that the sovereign may therefore take the goods of its subjects without their consent. This particular view owes its significance to it being first developed in the 1630s when Charles I had sought to raise revenues without the consent of Parliament, and therefore of his subjects. Hobbes rejected one of
7257-538: The diverse kinds of developing transnational law) and the increasingly important interrelations of law and culture, especially in multicultural Western societies. Legal positivism is the view that the content of law is dependent on social facts and that a legal system's existence is not constrained by morality. Within legal positivism, theorists agree that law's content is a product of social facts, but theorists disagree whether law's validity can be explained by incorporating moral values. Legal positivists who argue against
7380-575: The early Roman Empire to the 3rd century, a relevant body of literature was produced by groups of scholars, including the Proculians and Sabinians . The scientific nature of the studies was unprecedented in ancient times. After the 3rd century, juris prudentia became a more bureaucratic activity, with few notable authors. It was during the Eastern Roman Empire (5th century) that legal studies were once again undertaken in depth, and it
7503-534: The eldest son of his previous pupil. Over the next seven years, as well as tutoring, he expanded his own knowledge of philosophy, awakening in him curiosity over key philosophic debates. He visited Galileo Galilei in Florence while he was under house arrest upon condemnation , in 1636, and was later a regular debater in philosophic groups in Paris, held together by Marin Mersenne . Hobbes's first area of study
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#17327718657077626-501: The empirical methods used by social scientists. Prominent Scandinavian legal realists are Alf Ross , Axel Hägerström , and Karl Olivecrona . Scandinavian legal realists also took a naturalist approach to law. Despite its decline in popularity, legal realism continues to influence a wide spectrum of jurisprudential schools today, including critical legal studies , feminist legal theory , critical race theory , sociology of law , and law and economics . Critical legal studies are
7749-485: The events of the English Civil War had little effect on his contractarian methodology. However, the arguments in Leviathan were modified from The Elements of Law when it came to the necessity of consent in creating political obligation: Hobbes wrote in The Elements of Law that patrimonial kingdoms were not necessarily formed by the consent of the governed , while in Leviathan he argued that they were. This
7872-722: The exercise of good judgment, common sense, and caution, especially in the conduct of practical matters. The word first appeared in written English in 1628, at a time when the word prudence meant knowledge of, or skill in, a matter. It may have entered English via the French jurisprudence , which appeared earlier. The terms "philosophy of law" and "jurisprudence" are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology . Ancient jurisprudence begins with various Dharmaśāstra texts of India. Dharmasutras of Āpastaṃba and Baudhāyana are examples. In Ancient China,
7995-470: The exiled royalists led Hobbes to produce Leviathan , which set forth his theory of civil government in relation to the political crisis resulting from the war. Hobbes compared the State to a monster ( leviathan ) composed of men, created under pressure of human needs and dissolved by civil strife due to human passions. The work closed with a general "Review and Conclusion", in response to the war, which answered
8118-476: The extent to which they are binding. Kelsen contends that the extent to which legal norms are binding, their specifically "legal" character, can be understood without tracing it ultimately to some suprahuman source such as God, personified Nature or—of great importance in his time—a personified State or Nation. In the English-speaking world, the most influential legal positivist of the twentieth century
8241-488: The father of natural law. Like his philosophical forefathers Socrates and Plato, Aristotle posited the existence of natural justice or natural right ( dikaion physikon , δικαίον φυσικόν , Latin ius naturale ). His association with natural law is largely due to how he was interpreted by Thomas Aquinas . This was based on Aquinas' conflation of natural law and natural right, the latter of which Aristotle posits in Book V of
8364-734: The father of the Thomistic school of philosophy, for a long time the primary philosophical approach of the Roman Catholic Church . The work for which he is best known is the Summa Theologiae . One of the thirty-five Doctors of the Church , he is considered by many Catholics to be the Church's greatest theologian. Consequently, many institutions of learning have been named after him. Aquinas distinguished four kinds of law: eternal, natural, divine, and human: Natural law
8487-429: The field has traditionally focused on giving an account of law's nature, some scholars have begun to examine the nature of domains within law, e.g. tort law, contract law, or criminal law. These scholars focus on what makes certain domains of law distinctive and how one domain differs from another. A particularly fecund area of research has been the distinction between tort law and criminal law, which more generally bears on
8610-409: The foundation of states and legitimate governments and creating an objective science of morality. Much of the book is occupied with demonstrating the necessity of a strong central authority to avoid the evil of discord and civil war. Beginning from a mechanistic understanding of human beings and their passions, Hobbes postulates what life would be like without government, a condition which he calls
8733-553: The governed to obey. Secondary rules are rules that confer authority to create new primary rules or modify existing ones. Secondary rules are divided into rules of adjudication (how to resolve legal disputes), rules of change (how laws are amended), and the rule of recognition (how laws are identified as valid). The validity of a legal system comes from the "rule of recognition", which is a customary practice of officials (especially barristers and judges) who identify certain acts and decisions as sources of law. In 1981, Neil MacCormick wrote
8856-532: The incorporation of moral values to explain law's validity are labeled exclusive (or hard) legal positivists. Joseph Raz's legal positivism is an example of exclusive legal positivism. Legal positivists who argue that law's validity can be explained by incorporating moral values are labeled inclusive (or soft) legal positivists. The legal positivist theories of H. L. A. Hart and Jules Coleman are examples of inclusive legal positivism. Legal positivism has traditionally been associated with three doctrines:
8979-524: The law as it is. Austin explained the descriptive focus for legal positivism by saying, "The existence of law is one thing; its merit and demerit 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." For Austin and Bentham, a society is governed by a sovereign who has de facto authority. Through the sovereign's authority come laws, which for Austin and Bentham are commands backed by sanctions for non-compliance. Along with Hume, Bentham
9102-446: The law is on a specific issue in a specific jurisdiction, analytical philosophers of law are interested in identifying the features of law shared across cultures, times, and places. Taken together, these foundational features of law offer the kind of universal definition philosophers are after. The general approach allows philosophers to ask questions about, for example, what separates law from morality, politics, or practical reason. While
9225-473: The law to newer social exigencies. The law was then adjusted with evolving institutiones (legal concepts), while remaining in the traditional mode. Praetors were replaced in the 3rd century BC by a laical body of prudentes . Admission to this body was conditional upon proof of competence or experience. Under the Roman Empire , schools of law were created, and practice of the law became more academic. From
9348-429: The life of man, solitary, poor, nasty, brutish, and short. In such states, people fear death and lack both the things necessary to comfortable living, and the hope of being able to obtain them. So, in order to avoid it, people accede to a social contract and establish a civil society . According to Hobbes, society is a population and a sovereign authority , to whom all individuals in that society cede some right for
9471-519: The main precursor of American Legal Realism (other influences include Roscoe Pound , Karl Llewellyn , and Justice Benjamin Cardozo ). Karl Llewellyn, another founder of the U.S. legal realism movement, similarly believed that the law is little more than putty in the hands of judges who are able to shape the outcome of cases based on their personal values or policy choices. The Scandinavian school of legal realism argued that law can be explained through
9594-500: The morality enacted as law, not the laws themselves. The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric , where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according to nature. The context of this remark, however, suggests only that Aristotle thought that it could be rhetorically advantageous to appeal to such
9717-447: The most famous theses of Aristotle 's politics, namely that human beings are naturally suited to life in a polis and do not fully realize their natures until they exercise the role of citizen . It is perhaps also important to note that Hobbes extrapolated his mechanistic understanding of nature into the social and political realm, making him a progenitor of the term ' social structure .' In Leviathan , Hobbes set out his doctrine of
9840-465: The pedigree thesis, the separability thesis, and the discretion thesis. The pedigree thesis says that the right way to determine whether a directive is law is to look at the directive's source. The thesis claims that it is the fact that the directive was issued by the proper official within a legitimate government, for example, that determines the directive's legal validity—not the directive's moral or practical merits. The separability thesis states that law
9963-427: The philosophy of Thomas Aquinas , especially in his Treatise on law . In late 20th century, John Finnis revived interest in the theory and provided a modern reworking of it. For one, Finnis has argued that the maxim "an unjust law is no law at all" is a poor guide to the classical Thomist position. In its general sense, natural law theory may be compared to both state-of-nature law and general law understood on
10086-427: The post-1870 period. Francisco Suárez , regarded as among the greatest scholastics after Aquinas, subdivided the concept of ius gentium . Working with already well-formed categories, he carefully distinguished ius inter gentes from ius intra gentes . Ius inter gentes (which corresponds to modern international law) was something common to the majority of countries, although, being positive law, not natural law, it
10209-535: The predecessor to Hertford College, Oxford , where he was taught scholastic logic and mathematics. The principal, John Wilkinson, was a Puritan and had some influence on Hobbes. Before going up to Oxford, Hobbes translated Euripides ' Medea from Greek into Latin verse . At university, Thomas Hobbes appears to have followed his own curriculum as he was little attracted by the scholastic learning. Leaving Oxford, Hobbes completed his B.A. degree by incorporation at St John's College, Cambridge , in 1608. He
10332-465: The printing of the greater work proceeded, and finally appeared in mid-1651, titled Leviathan, or the Matter, Forme, and Power of a Common Wealth, Ecclesiastical and Civil . It had a famous title-page engraving depicting a crowned giant above the waist towering above hills overlooking a landscape, holding a sword and a crozier and made up of tiny human figures. The work had immediate impact. Soon, Hobbes
10455-448: The question: Does a subject have the right to change allegiance when a former sovereign's power to protect is irrevocably lost? During the years of composing Leviathan , Hobbes remained in or near Paris. In 1647, he suffered a near-fatal illness that disabled him for six months. On recovering, he resumed his literary task and completed it by 1650. Meanwhile, a translation of De Cive was being produced; scholars disagree about whether it
10578-495: The sake of protection. Power exercised by this authority cannot be resisted, because the protector's sovereign power derives from individuals' surrendering their own sovereign power for protection. The individuals are thereby the authors of all decisions made by the sovereign: "he that complaineth of injury from his sovereign complaineth that whereof he himself is the author, and therefore ought not to accuse any man but himself, no nor himself of injury because to do injury to one's self
10701-643: The same reason that they should accept the commands of their sovereign: in order to avoid war. While in Venice on tour, Hobbes made the acquaintance of Fulgenzio Micanzio, a close associate of Paolo Sarpi, who had written against the pretensions of the papacy to temporal power in response to the Interdict of Pope Paul V against Venice , which refused to recognise papal prerogatives. James I had invited both men to England in 1612. Micanzio and Sarpi had argued that God willed human nature, and that human nature indicated
10824-461: The same time refusing to evaluate those norms. That is, "legal science" is to be separated from "legal politics". Central to the Pure Theory of Law is the notion of a ' basic norm ' ( Grundnorm )—a hypothetical norm, presupposed by the jurist, from which all "lower" norms in the hierarchy of a legal system , beginning with constitutional law , are understood to derive their authority or
10947-507: The second half of the twentieth century, sociological jurisprudence as a distinct movement declined as jurisprudence came more strongly under the influence of analytical legal philosophy; but with increasing criticism of dominant orientations of legal philosophy in English-speaking countries in the present century, it has attracted renewed interest. Increasingly, its contemporary focus is on providing theoretical resources for jurists to aid their understanding of new types of regulation (for example,
11070-401: The sense of "general justice"; as such, this idea of justice is more or less coextensive with virtue. "Particular" or "partial justice", by contrast, is the part of "general justice" or the individual virtue that is concerned with treating others equitably. Aristotle moves from this unqualified discussion of justice to a qualified view of political justice, by which he means something close to
11193-520: The separate phenomena of Body, Man, and the State. Hobbes came back home from Paris, in 1637, to a country riven with discontent, which disrupted him from the orderly execution of his philosophic plan. However, by the end of the Short Parliament in 1640, he had written a short treatise called The Elements of Law, Natural and Politic . It was not published and only circulated as a manuscript among his acquaintances. A pirated version, however,
11316-428: The squaring of the circle gained such notoriety that it has become one of the most infamous feuds in mathematical history. The religious opinions of Hobbes remain controversial as many positions have been attributed to him and range from atheism to orthodox Christianity. In The Elements of Law , Hobbes provided a cosmological argument for the existence of God, saying that God is "the first cause of all causes". Hobbes
11439-444: The standard account of the origins of International law, which emphasises the seminal text De iure belli ac pacis by Hugo Grotius , and argued for Vitoria and, later, Suárez's importance as forerunners and, potentially, founders of the field. Others, such as Koskenniemi, have argued that none of these humanist and scholastic thinkers can be understood to have founded international law in the modern sense, instead placing its origins in
11562-411: The subject of modern jurisprudence. Of political justice, Aristotle argues that it is partly derived from nature and partly a matter of convention. This can be taken as a statement that is similar to the views of modern natural law theorists. But it must also be remembered that Aristotle is describing a view of morality, not a system of law, and therefore his remarks as to nature are about the grounding of
11685-471: The theorist's work. The natural law theorists of the distant past, such as Aquinas and John Locke made no distinction between analytic and normative jurisprudence, while modern natural law theorists, such as John Finnis, who claim to be positivists, still argue that law is moral by nature. In his book Natural Law and Natural Rights (1980, 2011), John Finnis provides a restatement of natural law doctrine. Unlike experimental jurisprudence , which investigates
11808-550: The time were aimed at a careful study of classical Greek and Latin authors, the outcome of which was, in 1628, his edition of Thucydides ' History of the Peloponnesian War , the first translation of that work into English directly from a Greek manuscript. Hobbes professed a deep admiration for Thucydides, praising him as "the most politic historiographer that ever writ," and one scholar has suggested that "Hobbes' reading of Thucydides confirmed, or perhaps crystallized,
11931-414: The time, namely the unrest leading up to the Civil War of 1642, Hobbes hastily "ripened and plucked" the work which would systematically come last: De Cive . This work comprises three parts: Libertas (liberty), Imperium (dominion), and Religio (religion). In the first part, he describes man's natural condition, dealing with the natural laws ; in the second, the necessity of establishing a stable government
12054-509: The title of A Defence of the True Liberty of Human Actions from Antecedent or Extrinsic Necessity ). In 1656, Hobbes was ready with The Questions Concerning Liberty, Necessity and Chance , in which he replied "with astonishing force" to the bishop. As perhaps the first clear exposition of the psychological doctrine of determinism, Hobbes's own two pieces were important in the history of the free will controversy. The bishop returned to
12177-566: The traditions, customs, and beliefs of the German people did not include a belief in a code. Historicists believe that law originates with society. An effort to systematically inform jurisprudence from sociological insights developed from the beginning of the twentieth century, as sociology began to establish itself as a distinct social science , especially in the United States and in continental Europe . In Germany, Austria and France ,
12300-501: The trilogy De Cive (1642), De Corpore (1655), and De Homine (1658) as well as the posthumous work Behemoth (1681). Hobbes contributed to a diverse array of fields, including history, jurisprudence , geometry , optics , theology , classical translations, ethics , as well as philosophy in general, marking him as a polymath . Despite controversies and challenges, including accusations of atheism and contentious debates with contemporaries, Hobbes's work profoundly influenced
12423-595: The understanding of political structure and human nature. Thomas Hobbes was born on 5 April 1588 (Old Style), in Westport , now part of Malmesbury in Wiltshire , England. Having been born prematurely when his mother heard of the coming invasion of the Spanish Armada , Hobbes later reported that "my mother gave birth to twins: myself and fear." Hobbes had a brother, Edmund, about two years older, as well as
12546-403: The work into English himself with such success that an intended translator would rather leave Hobbes to do the job; it is not certain whether this was indeed the case. The edition of the work by H. Warrender (Latin and English versions; Oxford: Clarendon Press, 1983) is at present standard. Thomas Hobbes Thomas Hobbes ( / h ɒ b z / HOBZ ; 5 April 1588 – 4 December 1679)
12669-410: The work of the "free law" theorists (e.g. Ernst Fuchs, Hermann Kantorowicz , Eugen Ehrlich and François Gény ) encouraged the use of sociological insights in the development of legal and juristic theory. The most internationally influential advocacy for a "sociological jurisprudence" occurred in the United States, where, throughout the first half of the twentieth century, Roscoe Pound , for many years
12792-515: Was H. L. A. Hart , professor of jurisprudence at Oxford University . Hart argued that the law should be understood as a system of social rules. In The Concept of Law , Hart rejected Kelsen's views that sanctions were essential to law and that a normative social phenomenon, like law, cannot be grounded in non-normative social facts. Hart claimed that law is the union of primary rules and secondary rules. Primary rules require individuals to act or not act in certain ways and create duties for
12915-554: Was Hobbes who translated it. In 1650, a pirated edition of The Elements of Law, Natural and Politic was published. It was divided into two small volumes: Human Nature, or the Fundamental Elements of Policie ; and De corpore politico, or the Elements of Law, Moral and Politick . In 1651, the translation of De Cive was published under the title Philosophical Rudiments concerning Government and Society . Also,
13038-416: Was a philosophical development that rejected natural law's fusing of what law is and what it ought to be. David Hume argued, in A Treatise of Human Nature , that people invariably slip from describing what the world is to asserting that we therefore ought to follow a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something
13161-539: Was a reaction to legal formalism that was popular the time due to the Christopher Columbus Langdell . Holmes's writings on jurisprudence also laid the foundations for the predictive theory of law. In his article "The Path of the Law", Holmes argues that "the object of [legal] study...is prediction, the prediction of the incidence of the public force through the instrumentality of the courts." For
13284-504: Was accused of atheism by several contemporaries; Bramhall accused him of teachings that could lead to atheism. This was an important accusation, and Hobbes himself wrote, in his answer to Bramhall's The Catching of Leviathan , that "atheism, impiety, and the like are words of the greatest defamation possible". Hobbes always defended himself from such accusations. In more recent times also, much has been made of his religious views by scholars such as Richard Tuck and J. G. A. Pocock , but there
13407-449: Was an English philosopher , best known for his 1651 book Leviathan , in which he expounds an influential formulation of social contract theory. He is considered to be one of the founders of modern political philosophy . In his early life, overshadowed by his father's departure following a fight, he was taken under the care of his wealthy uncle. Hobbes's academic journey began in Westport , leading him to Oxford University, where he
13530-784: Was an atheist in the early modern period ". In this extended early modern sense of atheism, Hobbes did take positions that strongly disagreed with church teachings of his time. For example, he argued repeatedly that there are no incorporeal substances, and that all things, including human thoughts, and even God, heaven, and hell are corporeal, matter in motion. He argued that "though Scripture acknowledge spirits, yet doth it nowhere say, that they are incorporeal, meaning thereby without dimensions and quantity". (In this view, Hobbes claimed to be following Tertullian .) Like John Locke , he also stated that true revelation can never disagree with human reason and experience, although he also argued that people should accept revelation and its interpretations for
13653-423: Was an early and staunch supporter of the utilitarian concept, and was an avid prison reformer, advocate for democracy , and firm atheist . Bentham's views about law and jurisprudence were popularized by his student John Austin . Austin was the first chair of law at the new University of London , from 1829. Austin's utilitarian answer to "what is law?" was that law is "commands, backed by threat of sanctions, from
13776-469: Was an interest in the physical doctrine of motion and physical momentum. Despite his interest in this phenomenon, he disdained experimental work as in physics. He went on to conceive the system of thought to the elaboration of which he would devote his life. His scheme was first to work out, in a separate treatise , a systematic doctrine of body, showing how physical phenomena were universally explicable in terms of motion, at least as motion or mechanical action
13899-481: Was exposed to classical literature and mathematics. He then graduated from the University of Cambridge in 1608. He became a tutor to the Cavendish family , which connected him to intellectual circles and initiated his extensive travels across Europe. These experiences, including meetings with figures like Galileo , shaped his intellectual development. After returning to England from France in 1637, Hobbes witnessed
14022-459: Was finished in November 1641. Although it was initially only circulated privately, it was well received, and included lines of argumentation that were repeated a decade later in Leviathan . He then returned to hard work on the first two sections of his work and published little except a short treatise on optics ( Tractatus opticus ), included in the collection of scientific tracts published by Mersenne as Cogitata physico-mathematica in 1644. He built
14145-426: Was formidable. Hobbes spent the last four or five years of his life with his patron, William Cavendish, 1st Duke of Devonshire , at the family's Chatsworth House estate. He had been a friend of the family since 1608 when he first tutored an earlier William Cavendish. After Hobbes's death, many of his manuscripts would be found at Chatsworth House. His final works were an autobiography in Latin verse in 1672, and
14268-410: Was more lauded and decried than any other thinker of his time. The first effect of its publication was to sever his link with the exiled royalists, who might well have killed him. The secularist spirit of his book greatly angered both Anglicans and French Catholics . Hobbes appealed to the revolutionary English government for protection and fled back to London in winter 1651. After his submission to
14391-487: Was not necessarily universal. On the other hand, ius intra gentes , or civil law, is specific to each nation. Writing after World War II , Lon L. Fuller defended a secular and procedural form of natural law. He emphasised that the (natural) law must meet certain formal requirements (such as being impartial and publicly knowable). To the extent that an institutional system of social control falls short of these requirements, Fuller argued, we are less inclined to recognise it as
14514-536: Was perhaps a reflection either of Hobbes's thoughts about the engagement controversy or of his reaction to treatises published by Patriarchalists , such as Sir Robert Filmer , between 1640 and 1651. When in November 1640 the Long Parliament succeeded the Short, Hobbes felt that he was in disfavour due to the circulation of his treatise and fled to Paris. He did not return for 11 years. In Paris, he rejoined
14637-686: Was printed in Amsterdam because he could not obtain the censor's licence for its publication in England. Other writings were not made public until after his death, including Behemoth: the History of the Causes of the Civil Wars of England and of the Counsels and Artifices by which they were carried on from the year 1640 to the year 1662 . For some time, Hobbes was not even allowed to respond to any attacks by his enemies. Despite this, his reputation abroad
14760-480: Was published about ten years later. Although it seems that much of The Elements of Law was composed before the sitting of the Short Parliament, there are polemical pieces of the work that clearly mark the influences of the rising political crisis. Nevertheless, many (though not all) elements of Hobbes's political thought were unchanged between The Elements of Law and Leviathan , which demonstrates that
14883-458: Was published by Bishop John Bramhall . Bramhall, a strong Arminian , had met and debated with Hobbes and afterwards wrote down his views and sent them privately to be answered in this form by Hobbes. Hobbes duly replied, but not for publication. However, a French acquaintance took a copy of the reply and published it with "an extravagantly laudatory epistle". Bramhall countered in 1655, when he printed everything that had passed between them (under
15006-433: Was recommended by Sir James Hussey, his master at Magdalen, as tutor to William , the son of William Cavendish , Baron of Hardwick (and later Earl of Devonshire ), and began a lifelong connection with that family. William Cavendish was elevated to the peerage on his father's death in 1626, holding it for two years before his death in 1628. His son, also William, likewise became the 3rd Earl of Devonshire. Hobbes served as
15129-514: Was then understood. He then singled out Man from the realm of Nature and plants. Then, in another treatise, he showed what specific bodily motions were involved in the production of the peculiar phenomena of sensation, knowledge, affections and passions whereby Man came into relation with Man. Finally, he considered, in his crowning treatise, how Men were moved to enter into society, and argued how this must be regulated if people were not to fall back into "brutishness and misery". Thus he proposed to unite
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