The seventeenth century witnessed what has been called the "heroic" period in the development of modern natural law theory.1 Beginning with Hugo Grotius, Protestant thinkers began to experiment with scholastic natural law ideas to produce a distinctive and highly successful tradition of natural jurisprudence that would come to dominate European political thought. Viewed from the eighteenth century, the success of the tradition could be, and often was, taken for granted, but such retrospective views could often conceal the extent to which the early pioneers faced real challenges in their attempts to reconcile natural law ideas with the rigors of Protestant theology. In this context, Richard Cumberland is perhaps one of the great unsung heroes of the natural law tradition. Cumberland's De Legibus Naturae constituted a critical intervention in the early debate over the role of natural jurisprudence at a moment when the natural law project was widely suspected of heterodoxy and incoherence.
Hugo Grotius's work undoubtedly generated a great deal of interest among Protestant thinkers, but it also occasioned a critical response that threatened to undermine the whole project. The most dangerous writer in this respect was Thomas Hobbes. Hobbes simultaneously adapted and subverted the new jurisprudence, producing a theory that would become notorious for its apparent atheism and absolutism. As a result, early natural law writers were dogged by accusations of Hobbism, the charge that behind their attempts to forge a new tradition lay the reduction of moral and political obligation to self-interest alone. Cumberland's De Legibus Naturae, with its sustained assault on Hobbes's ideas, constituted one of the most important and influential responses to this damaging accusation. Cumberland not only produced one of the most effective critiques of Hobbes's ideas, but he also used the opportunity to propose a new and distinctively scientific approach to questions of moral and political obligation. Cumberland's achievement was to provide a much-needed defense of the natural jurisprudential project while laying important theoretical foundations for the work of such later writers as Clarke, Shaftesbury, and Hutcheson.2
Richard Cumberland (16321718)3
Cumberland was born in London, the son of a Salisbury Court tailor. He attended St. Paul's School, and in June 1649, barely five months after the execution of Charles I, he entered Magdalene College, Cambridge. At Magdalene, Cumberland supplemented his regular studies with a rich diet of natural philosophy, developing the scientific knowledge that informs almost every page of the De Legibus. Cumberland's interest in the new science was crucial to his natural law theory; the union of natural philosophy and natural theology created the basis for his science of morality and his logical demonstration of divine obligation.
The reasoning behind the Constitution of the United States is presented as 'based upon the philosophy of Hobbes and the religion of Calvin. It assumes the natural state of mankind in a state of war, and that the carnal mind is at enmity with God.' Throughout, the struggle between democracy and tyranny is discussed as the Founding Fathers who envisioned the Constitution in Philadelphia in 1787 believed not in total democracy, but instead saw common man as selfish and contemptuous, and therefore in need of a 'a good political constitution to control him.' Being a largely propertied body, with the exception of William Few, who was the only one who could honestly be said to represent the majority yeoman farmer class, the highly privileged classes were fearful of granting man his due rights, as the belief that 'man was an unregenerate rebel who has to be controlled' reverberated.
Common Law vs. Political Law vs. Scientific Law Americans are no longer aware that there are two kinds of legal systems, political and scientific. America was founded on principles of scientific law. But these principles have now been submerged in today's legal system. What is taught today as law is political law. To understand the difference between a scientific legal system and a political one, it is necessary to know that scientific law developed in the absence of any legislature or Congress or Parliament whatever.
As the centuries went on, philosophy, just like many other things, became much more secular. That being said, Schmitt made it very clear in “The Problem of Sovereignty” that “In political reality”, sovereigns no longer act under the idea of natural law (Schmitt 17). Later on in this same chapter, Schmitt discusses how Hobbes would not understand the idea of superior and inferior because Hobbes believes anyone who has power is subject to the other. However, when Hobbes was writing much earlier, the idea of natural law was still a very prominent concept in philosophy and therefore Hobbes believed that even the absolute sovereign was subject to the laws of nature which he clearly states in “Of Civil Laws” when he says the laws the sovereign makes “be not against the law of nature (which is undoubtedly God’s law)” (Hobbes
Alan Norrie, Professor at the University of Warwick, presents a systematic examination of Hobbes’s philosophy of punishment with the intention of demonstrating its connection to the development of modern punishment theory. Norrie begins by attempting to address the contradiction between the sovereigns right to punish and the individual’s inalienable right to self-preservation. Although punishment seems to be the central function of the sovereign, it is described as the infliction of an evil, which no individual of sound and rational mind would ever agree to. Thus, it seems implausible (even impossible) that rational beings would consent to their
Hobbes’ theory on the condition of the state of nature, and government are not only more applicable today but his reasoning is far sounder than that of Rousseau. These concepts were significantly conditionally reliant. What Hobbes imagined was not a pre-societal period, rather he ...
In contrary to its contemporary antagonist philosophical schools, who advocate the practices of humanness and the rightness and set ideal of the past, the Legalists, in their complete rejection of the traditional ethics, embraces the efficacy of political power and uphold a society of laws and punishments. As the old feudal states decayed and the smoke of endemic warfare suffused, the need for a more rational government that can afford greater centralized power so as to strengthen a state against its rival increased substantially among the Warring States. Such a rising urge necessitated the emergence of the Legalists and further predetermined the Legalists’ inherent nature – realistic, totalitarian and problem-solving – which, with the realization of its significance and duty in the stream of history, finds its hegemonic character as well.
On the other hand, though John Locke held a strong influence in the construction of the Constitution, one cannot eschew Thomas Hobbes’ effect on the both of them. Hobbes also purported a State of Nature for Man, although his was one of great hardship, war, and suffering; “where every man [was] Enemy to every man” (Hobbes, pg. 89). Like Locke, his too was a state of perfect equality, not because everyone had equal right to the fruits of the earth, but because they were all equally able to be killed (Hobbes, pg. 87). The life of man without the protection of a civil authority was, according to Leviathan, “solitary, poor, nasty, brutish, and short” (89). In order to better protect themselves the people, out of fear, submit to an all-powerful authority,
Above anything else, Thomas Hobbes’ Leviathan is a creation story and an investigation of human nature. The story begins in a time of chaos and death and through a journey of human development culminates in the establishment of a sustainable and rational society—the commonwealth—led by a sovereign. At a first casual glance, Hobbes’ reasoning of the transformation from the state of nature to the commonwealth is not airtight. A few possible objections can be quickly spotted: the contradictions of natural law with suicide and the civil law to honor even harmful covenants. Hobbes deals with some of these issues and seems to ignore others, but he does address in detail the most significant objection to his theory: the unlimited and unchecked power given to the sovereign. The establishment of the commonwealth culminates in a covenant that grants the sovereign absolute power in enforcing the civil laws of the state, but also guarantees the sovereign’s status as above the law. How does this ensure peace and survival, as is the point of the commonwealth? Hobbes provides many convincing reasons why it would be difficult, counterproductive, and impossible for the sovereign to not be above the law, but in the end, disorder and chaos are worse than any tyranny.
Hobbes, T. (1839-45) The English Works of Thomas Hobbes of Malmesbury; Now First Collected and Edited by Sir William Molesworth, Bart. Vol. 3. Leviathan. London: Bohn. Accessed via: http://oll.libertyfund.org/titles/hobbes-the-english-works-vol-iii-leviathan
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
29 Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Indianapolis: Liberty Fund, 1998), 119-121.
The main critics of Thomas Hobbes’ work are most often those with a more optimistic view of human nature. However, if one is to really look at a man’s actions in depth, a self-serving motivation can always be found. The main problem with Hobbes’ claims is that he does not account for the more Darwinian perspective that helping one’s own species survive is at the same time a selfish and unwar-like act. Thus his conclusion that without a governing body, we are essentially at war with one another is not completely true as years of evolution can help disprove.
An issue that has remained debatable since the Jackson litigation was what ought to be the ultimate controlling factor in the British constitution: parliamentary sovereignty or the rule of law. This essay sets out to consider the reputedly irreconcilable tension between the two fundamental constitutional principles by analysing the extensive obiter dicta in Jackson and relating it to judicial review which upholds the rule of law. The contention of this essay is that despite the courts' deferential attitude towards the sovereignty of the laws of Parliament, the rule of law may potentially gain dominance and surpass parliamentary sovereignty to become the ultimate controlling factor in the British constitution.
Hobbes believes that “law is nothing more than the will of the sovereign” . A legal philosopher named John Austin later on developed this by defining law as a law simply because it is being obeyed. In his theory of legal positivism, it “saw the defining feature not as i...
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.