A blupete Essay

Hobbes, Part 6 to blupete's Essay
"The Law"

We need laws, so said Alexander Hamilton in 1788, because "the passions of men will not conform to the dictates of reason and justice without restraint." This of course expresses the Hobbesian view of human nature which we but only touched upon, when Judge Gest was quoted at the first of this essay; viz., considering the propensities of our "long armed and hairy ancestors," laws are needed. It is well, even in this, an introduction to the subject of the law, to fix firmly upon the thoughts of Thomas Hobbes if one is to consider if there is a need for man-made laws; and, if so, to what extent.

Thomas Hobbes (1588-1679), an Englishman, wrote a book in 1651, Leviathan. Hobbes' book has been described as the "greatest, perhaps the sole, masterpiece of political philosophy in the English language" it is a treatise on the origin and ends of government. It was Hobbes' view that while man's nature does not require a governing state, independent of his own, a better life might well be assured through the existence of an outside governing state; it was unnatural14 for man to put himself under the control of others, to have a government, but that it was rational to do so. Both Hobbes and Locke ended up in the same place, viz., a government and system of law is best; but, where Hobbes and Locke differed -- and it is important to understand this -- is in the reasons why man ought to put himself under external government. For Locke, it was just that man would be better off under government; but in coming to this conclusion Locke did not cast man as a vile beast to be reined in: Hobbes, on the other hand, was of the view that if man were not brought under a system of government and laws, then man would proceed to lead his life in the midst of others all being singularly driven by an egotistical psychology; and, thus, life for most would be "nasty, brutish and short, a constant war of every man with every man." Rational, enlightened self-interest, so the Hobbesian theory goes, makes men want to escape such a predicament by the establishment of a contract in which they surrender power to an absolute sovereign, whose commands are the law; freedom being relegated to the spheres not covered by the sovereign's commands. This arrangement is binding only so long as the sovereign has power to enforce it. To put this theory in a modern context, this arrangement, if it is to work, will work whether sovereignty is vested in a person, or an assembly of persons. It is, to be clear, the Hobbesian view that "the first principle of human behavior was egoism, or self-interest, and it was this egoism, that was the root of all social conflict." (Benet's.)

The primitive individualism as described by Thomas Hobbes is a myth. The savage was not, and could not have been, solitary; his instinct was and is collectivist.15 The rules of human conduct gradually evolved, particularly the rules governing the possession and exchange of property, viz., contract law. These rules were handed down by tradition, teaching and imitation, and consisted largely of prohibitions, that is to say law evolved to be restrictive in nature.

The human species, as like every life form, indeed, like the cosmos in which life exists, evolved through a massive period of time. Darwinian theory, now the accepted theory as to our origins, to be fair to Hobbes, is a theory of modern times. In spite of the images, over the thousands and thousands of years just preceding civilization, the cave man could not have been much different than any man we might observe as exists on earth today; certainly it cannot be expected that the observations that one might make of a "cave man," of say 100,000 years back, could be any more different than the observations that the same person might make of a randomly picked man of the 21st century. (Unfortunately, lacking a time machine, we are unable to put the matter to the test.) Putting aside a divinity theory, -- which, at any rate, must necessarily take us outside of scientific parameters -- if the dark and gloomy Hobbesian view of man is to be accepted, then, what must occur, is an adequate explanation as to how man came to be -- by and large -- the caring, thinking and beauty appreciating creature that indeed he has come to be. Locke accepted that man, while far from being angelic, nonetheless, had a wonderful nature and that a government and laws were desirable so as to extend man's horizons. However, in order not to dampen down the very thing that through the eons formed him -- his freedom of action -- it is necessary to impose but the simplest set of laws which would achieve the objective, "bringing peace to the whole of society." Criminal law of a practical nature is needed to deal (I favour the word punish) with the offensive actors amongst us (including government, but more on that in a moment). What is permissible, in a proper notion of a government and a system of laws, is to allow government, and only government, as an agent of the people, to use force against another, but, even then, only if it is against an offensive person where the offenses have been carefully spelt out before hand (criminal law). In order to achieve this end, "social peace," on strict Lockian theory, it would only be necessary to set up government for its principal goals (and maybe only goals) of the punishment of criminals and the enforcement of the law which people have set for themselves (tort law, contract law; or, more generally, the common law). In setting up the mechanisms of government, the prime consideration is to be the control of its (government) power. Laws beyond that which is needed to achieve the goal of "social peace" are not necessary, and, indeed, are harmful in that they would impede man's progress by infringing that which sustains life: freedom. In the final analysis, according to the Lockian view of society, not much is required to be done by government; society is quite capable of taking care of itself.

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