Introduction to Public Law

Question 1

Why do we obey the state?

Answer 1

Social Contract

• Natural rights suggest all people are free and equal by nature
• Thus, authority, legitimacy and obligation must rest on ‘consent’ to those subject to it

Question 2

Thomas Hobbes, Leviathan [1651]

Answer 2

Explained that we need to bind ourselves to a sovereign state

Question 3

Hobbes on the State of Nature

‘Of the natural condition of mankind’

Answer 3

• By nature, we are equal and free
• As a consequence of our equality and liberty, we Weill end up in a perpetual world of quarrel and struggles
• Caused by competition, diffidence and glory
• Leads to a ‘war of every man against every man’

Question 4

A world without government…

Answer 4

‘the life of man [is] solitary, poor, nasty, brutish and short’

Question 5

Social Contract Theory

Answer 5

• We give up our natural rights in exchange for protection of life and property
• Law is integral and central to society = every rational individual would enter into the social contract

Question 6

Hobbes on Arbitrary Power

Answer 6

• If the sovereign acts in an arbitrary manner then it has violated the social contract.
• Through social contract we have created an authority, but it is never arbitrary

Question 7

Hobbes on Government

Answer 7

• We create a hierarchical structure through social contract
• Sovereign is the source of law = creates an authoritative regime but not an absolute
• Law is the command of the sovereign, sovereign cannot be bound by law
• Where law ends, civil liberty begins

Question 8

Locke on Rights

Answer 8

• Natural rights = life, liberty and property (absolute and inalienable)

Question 9

Locke: Life in the state of nature

Answer 9

• Individuals are free, equal and rational
• Natural right to acquire property through fruits of labour
• Natural law operates in a state of nature

Question 10

Locke: why leave the natural state?

Answer 10

An authoritative system is needed to formalise and enforce the rules

Question 11

Locke on Constitutional Government

Answer 11

• Government established by social contract of delegation - not alienation of natural rights
• Does not extinguish all natural rights, retain those that do not concern sovereign and collect e.g. right to religion
• Contract respects basic rights of individual untouchable by collective (modern frame of constitution)

Question 12

Locke on Revolution

Answer 12

If government breaches trust:

• Power is devolved back to the people
• i.e. return to the state of nature
• gives people the ‘right of rebellion’
• Threat of legitimate rebellion ensures that those in government will not be tempted to abuse their authority

Question 13

Paine on UK constitution

Answer 13

• rejection of God-given, Lockean language in exchange for reason
• asserted that UK constitution is a result of monarchy, clergy etc. [‘fraudulent rule of kingcraft and priestcraft’]
• “US constitution is to liberty, what grammar is to language”

Question 14

Paine on the Constitution

Answer 14

• ‘A constitution is a thing antecedent to government, and a government is only the creature of a constitution’
• ‘a thing’ - a document, a piece of paper = “Wherever it cannot be produced in a visible form, there is none”
• If a Parliament can empower itself, it is not bound by a constitution

Question 15

Loughlin, Sword and Scales: The Hobbesean covenant

- uses the idea of covenant in which individuals cede their natural rights to explain the validity of political order

Answer 15

• legitimise coercive political order through the principles of mutual consent
• Is an act of alienation in which natural rights are relinquishes
• Not done through a contract, but a covenant which establishes the authority of rulership

Question 16

David Hume on Government

Answer 16

• Government cannot be in contract
• Once established, its wills can be imposed without regard to the people’s consent
• Instead, political obligation is grounded in the foundation of utility