Bentham and Hobbes: Two Theories of Legislation

Topics: Law, Political philosophy, Jurisprudence Pages: 7 (2569 words) Published: November 26, 2008
Thomas Hobbes and Jeremy Bentham were both legal positivists. In an attempt to solve the problem of interpretation, legal positivists conclude that there is only one way to interpret a law. According to Hobbes' theory of legislation, it is the people who enforce the law that decide what it means. On the other hand, Bentham argues that promulgating the reasons for a law solves the interpretation problem. Both Bentham and Hobbes viewed law somewhat negatively; arguing that the nature of the law is a restraint on liberty. Their two theories differ the most in regards to natural law. In this paper, I will explain both Hobbes' and Bentham's theories of legislation and apply them to the Supreme Court Case Marbury v. Madison.

Hobbes states that "civil law, is to every subject, those rules, which the commonwealth hath commanded him, by word, writing, or other significant sign of the will, to make use of, for the distinction of right and wrong; that is to say, of what is contrary, and what is not contrary to the rule" (Hobbes 173). Based on this definition, men are obliged to obey civil laws because they are members of a commonwealth. In this definition, Hobbes asserts that law is command, not counsel and that law are the rules of just and unjust. Hobbes insists that any law must be promulgated. In order for one to know how to obey it, a law must be "signified by sufficient signs". Laws must be made known for them to actually be law.

Hobbes argues that the sovereign is legislator and it is he who makes the law. Following from this, Hobbes deduces that the legislator is not subject to civil law. The sovereign alone is the final judge of the law. To imply that the sovereign is bound to a law is just like implying that the sovereign is bound to itself. As Hobbes explains, it is not "possible for any person to be bound to himself; because he that can bind, can release" (Hobbes 173). Hobbes goes on to argue that it is not the length of time that makes a law, but that it is the sovereign's consent that makes law. Nor is it custom that makes law because laws are made by the sovereign power. Hobbes explains this by stating, "the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws" (Hobbes 175).

In Hobbesian theory, the law of nature can only be known through reason alone and like the law of nature, civil law can never be against reason. "The law of nature is the basis of civil law; they contain each other, and are of equal extent" (Hobbes 174). According to Hobbes, laws of nature are not actual law until a commonwealth is settled. After settlement, they become the law of the commonwealth as well as civil law. It can also be said that, "the civil law is a part of the dictates of nature" (Hobbes 174) His theory describes the unwritten law of nature as "qualities that dispose men to peace and obedience." Thus, a part of the law of nature is also obedience to civil law (Hobbes 174).

Hobbes believes that all laws require judgment and interpretation. That authority lies in the sovereign, not with lawyers, legal scholars, or philosophers. Hobbes shows that intention is law, not the text in saying, "for it is not the letter, but the intendment, or meaning, that is the authentic interpretation of the law" (Hobbes 180). While the sovereign is the final judge, he may appoint subordinate judges to verify the laws he authorizes. According to Hobbes, "verification, is but the testimony and record, not the authority of the law" (Hobbes 179). A subordinate judge cannot authorize or make law; they can only verify law.

Hobbes lays out his idea of a good judge, or interpreter of the laws. To him, an excellent judge is one that has a right understanding of the fundamental law of nature, equity. A good judge must also have the "patience to hear; diligent attention in hearing, and [the] memory to retain, digest, and apply what he hath heard" (Hobbes 185). A good judge must also...
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