Sir Leslie Stephen (essay date 1904)
SOURCE: "The State," in Hobbes, 1904. Reprint by The University of Michigan Press, 1961, pp. 173-236.
[In the following excerpt, Stephen examines Hobbes's conception of both the law of nature and the social contract.]
1. Contemporary Controversies
We come now to the third part of Hobbes's philosophy. He is to base a science of politics upon the doctrines already expounded. We become aware that there is a certain breach of continuity. To understand his line of thought, it is necessary to take note both of the problems in which he was specially interested, and the form into which the arguments had been moulded by previous thinkers. He applies to the questions of the day certain conceptions already current in political theory, though he uses them in such a way as materially to alter their significance.
Hobbes's theory in the first place involves the acceptance of a so-called "Law of Nature." "Nature," as we know, is a word contrived in order to introduce as many equivocations as possible into all the theories, political, legal, artistic, or literary, into which it enters. The "Law of Nature," as writers upon jurisprudence tell us, was invented by Roman lawyers with the help of Stoic philosophers. The lawyers, having to deal with the legal systems of the numerous races which came into contact with Rome, were led to recognise a certain body of laws common to all. Such law came to be considered as laid down by Nature. It was a product of the human nature common to Greeks and Romans, and not affected by the special modifications by which Romans are distinguished from Greeks. It belonged to the genus man, not to the species nation. The philosopher, meanwhile, took the Law of Nature to be law imposed by the divine author of nature, discoverable by right reason, and therefore common to all reasoning beings. The law in either case is "natural" because universally valid. But this may cover two diverging conceptions. To the man of science "nature" means everything actually existing. One quality cannot be more "natural" than another, though it may be more widely diffused. A scientific investigator of jurisprudence would inquire what systems of law prevail in different countries, and would seek to discover the causes of uniformity or difference. The inquirer is so far simply concerned with the question of fact, and to him the exceptional is just as much a natural product as the normal legislation. The scientific point of view is that from which one might expect Hobbes to treat the question. He accepts, however, the Law of Nature in another sense. It meant an ideal, not an actual law, and tells us what ought to be, not what is. There may of course be a presumption that a law (if there is such law) which is universally accepted is also dictated by reason; or a state may be so happily constituted that the perception that a law is reasonable may involve its acceptance in the actual system. But in any case the Law of Nature is supposed to be the type to which the actual law should be made to conform, and therefore implies a contrast and occasional conflict between the two systems.
Hobbes's view implies another distinction. Every one admits that laws may rightly vary according to circumstances within certain limits. There are laws, we may say, which it is right to obey because they are the law, and others which are the law because it is right to obey them. In England the law of the road tells carriages to keep to the left, and in France to keep to the right. We clearly ought to obey each rule in its own country. But there are other cases. In some countries the law permits or enforces rules of marriage which in other countries are held to be immoral and revolting. Is it true in this case also that each law is right in its own country, or is one set of laws to be condemned as contrary to the Law of Nature? Given the Law of Nature, that is, how are we to decide what sphere of discretion is to be left to the legislator? Can he deal with the most...
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