Hobbes Command Theory of Law Flashcards
What is Hobbes’ main claim?
The law is what the sovereign commands.
What is the State of Nature?
The conditions of human existence in a pre-ethical/political/legal society.
What are the four conditions of the State of Nature?
- Equality of need
- Scarcity
- Equality of power
- Limited sympathy
How is law defined by Hobbes?
A solution to a practical problem (the state of nature/war) that arises for rational self-interested agents and social agreement alone.
What are the two claims shared by positivists?
- Social Thesis: What defines legality is simply a matter of social practice and convention
- Separability Thesis: No necessary connection between law and morality
What does Hobbes believe must happen to leave the State of Nature?
Social cooperation where individuals agree on the laws of nature - laws fathomed by human reason.
What are the Fundamental Laws of Nature?
- The goal of peace
- Give up the right to use force
- Keep your agreements
What is Hobbes’ definition of the sovereign?
A person or group of persons who can institute enforcement, adjudicate conflict, and make sure that people keep their agreements. Their commands define law. The sovereign is not subject to civil law and can do what they like.
What is the role of judges?
To determine what the law is by reference to the sovereign’s written or unwritten declarations and interpret declarations which are unclear.
What problem does Hobbes’ definition of the sovereign have?
It goes against the rule of law: that no one is above the law.
What are some objections to Hobbes’ argument?
- Skeptic: Does this theory provide sufficient reason for following the laws? To what extent can such a social contract bind rational egoistic agents?
- Does this theory provide sufficient reason to account for legal obligation?
- Is this theory an adequate description of morality? Is morality simply the set of rules that you contract for the sake of mutual self-interest?
- To whom does this theory apply?
