Hobbes and the internal point of view

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1211-1228

  Finkelstein, Claire ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33846561665     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (60)

1. See generally John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence 13-16 (Isaiah Berlin et al. eds., Noonday Press 1954) (1832).
2. Thomas Hoabbes, Leviathan, ch. XIII, ¶ (Edwin Curley ed., Hackett Publ'g Co. 1994) (1668) [hereinafter Leviathan].
3. Id. ch. XIII, ¶ 4 (footnote omitted).
4. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).
5. Id. at 461.
6. H.L.A. Hart, The Concept of Law 90 (2d ed. 1994). I do not mean to suggest that any account of law that assumes the external perspective necessarily adopts a "bad man" view of the law. But the converse seems quite clearly to be true, namely that a "bad man" view of the law will be committed to adopting the external perspective on law, and hence will be unable to account for law's internal aspect.
7. Stephen R. Perry, Holmes Versus Hart: The Bad Man in Legal Theory, in The Path of the Law and Its Influence 158,175 (Steven J. Burton ed., 2000).
8. M.M. Goldsmith, Hobbes on Law, in The Cambridge Companion to Hobbes 274 (Tom Sorrell ed., 1996), reprinted in Hobbes on Law 3, 4 (Claire Finkelstein ed., 2005).
9. H.L.A. Hart, supra note 6, at 64.
10. Leviathan, supra note 2, ch. XXVI, ¶ 2.
11. Id. ch. XXVI, ¶ 6.
12. Id. ch. XXVI, ¶ 10.
13. Id. ch. XV, ¶ 3.
14. Id. ch. XXI, ¶ 7.
15. Perry, supra note 7, at 175.
16. Ben Zipursky has pointed out to me that the Holmesian bad man view of the law is arguably quite different from the Austinian command theory. It is, for example, entirely possible that an Austinian command theorist thinks of law as imposing obligations, rather than as merely obliging (to use the Hartian terminology). Although there is much reason to suppose that John Austin himself did not see matters this way, there is nothing implicit in the nature of a command theory that would commit one to taking the external perspective. The distinctions between Holmes and Austin, however, do not particularly concern us here.
17. Leviathan, supra note 2, ch. XXVI, ¶ 2.
18. See generally Bernard Williams, Moral Luck: Philosophical Papers 1971-1980 (1981).
19. Once again, however, the latter theory of legal obligation could be based on external, rather than internal reasons.
20. See Hart, supra note 6, at 82.
21. Id. at 83-84.
22. Id. at 84.
23. Id. at 57.
24. Williams, supra note 18, at 104-05.
25. Leviathan, supra note 2, ch. XIV, ¶ 7.
26. Id. (footnote omitted).
27. Id.
28. Id.
29. True, it is in theory possible for a large number of individuals in a state of nature forcibly to take away rights of a smaller number. And so one might suppose that loss of right can occur by "conquest" as well. But first, Hobbes thinks that no one can permanently amass enough power or establish a permanent enough confederacy to gain mastery over his fellows in this way. "[T]he weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others that are in the same danger with himself." Id. ch. XIII, ¶ 1. Second, it is not clear that Hobbes would consider loss of right "by conquest" a loss of right at all. (This last point, however, is a tricky one, and more would need to be said to show this.)
30. Id. ch. XVII, ¶ 13 (emphasis omitted).
31. Id. ch. XVIII, ¶ 6.
32. Id. ch. XV, ¶ 1 (emphasis omitted).
33. Id. ch. XIV, ¶ 3.
34. Id. ch. XV, ¶ 2.
35. True, Hobbes makes clear, the sense in which keeping covenants should actually be considered a rule of reason in the absence of civil society is quite limited, so that while "the nature of justice consisteth in keeping of valid covenants, . . . the validity of covenants begins not but with the constitution of a civil power sufficient to compel men to keep them." Id. ch. XV, ¶ 3. The existence of a civil power merely specifies the conditions under which the rule of reason that dictates the keeping of covenants can be given effect.
36. Id. ch. XV, ¶ 4 (internal quotation marks omitted).
37. Id. ch. XV, ¶ 5.
38. Id.
39. Id.
40. See, e.g., David P. Gauthier, The Logic of Leviathan: The Moral and Political Theory of Thomas Hobbes 76-88 (1979);
41. Gregory Kavka, Hobbesian Moral and Political Theory 137-56 (1986);
42. Howard Warrender, The Political Philosophy of Hobbes: His Theory of Obligation (1957);
43. David Gauthier, Three Against Justice: The Foole, the Sensible Knave, and the Lydian Shepherd, in Moral Dealing: Contract, Ethics, and Reason 129, 136-37 (1990).
44. I except from this Hart's "minimum content of natural law" conditions from chapter nine of The Concept of Law, which seem out of keeping with the theory of law that precedes it. Hart, supra note 6, at 193-200.
45. This is especially helpful for making room for the possibility of "soft positivism" as it has recently been called, which Hart set out in the Postscript to The Concept of Law. Id. at 250-54.
46. Id. ch. XXVI, ¶ 8.
47. Id.
48. Thomas Hobbes, A Dialogue Between a Philosopher and a Student of the Common Laws of England (Joseph Cropsey ed., Univ. of Chi. Press 1971) (1666) [hereinafter Dialogue].
49. Id. at 61.
50. Id. at 96.
51. Id. at 55.
52. Id. at 54.
53. Leviathan, supra note 2, ch. XV, ¶¶ 23-24.
54. Dialogue, supra note 45, at 99.
55. Leviathan, supra note 2, ch. XXI, ¶ 7.
56. Augustine, On Free Choice of the Will, bk. one, no. 5 (Thomas Williams trans., Hacket Publ'g 1993) (395).
57. Leviathan, supra note 2, ch. XXI, ¶ 7.
58. Id. ch. XXI, ¶ 21.
59. I discuss this point in greater length in Claire Finkelstein, A Puzzle About Hobbes on Self-Defense, 82 Pac. Phil. Q. 332 (2001).
60. See Augustine, supra note 53.