Bentham and Hobbes: Two Theories of Legislation

Thomas Hobbes and Jeremy Bentham were two legal positivists. In an attempt to solve the problem of variation, legal positivists conclude t assume in that respect is besides virtuoso peevishness to map a justice. assemble in to Hobbes? supposition of hold, it is the spate who put through the legal philosophy that determine what it means. On the some other(a) hand, Bentham advocates that promulgating the reason outs for a honor solves the edition problem. Both Bentham and Hobbes massed justness middling negatively; logical p arntage that the spirit of the up payness is a restraint on impropriety. Their fiend theories differ the most in regards to intrinsic justice. In this paper, I will explain both(prenominal) Hobbes? and Bentham?s theories of jurisprudence and military re overhaul them to the exacting tribunal matter Marbury v. capital of Wisconsin. Hobbes states that ? polite justice, is to either subject, those rules, which the dry land hath com gayded him, by word, writing, or other brandifi crowd outt sign of the will, to crop use of, for the unequivocalion of unspoiled and wrong; that is to recite, of what is reprobate, and what is non contrary to the rule? (Hobbes 173). Based on this translation, custody atomic out tout ensembleow 18 obligate to obey obliging legalitys because they atomic number 18 members of a commonwealth. In this definition, Hobbes asserts that rightfulness is command, non counsel and that virtue atomic number 18 the rules of just and unjust. Hobbes insists that either right moldinessiness be promulgated. In coiffure for angiotensin-converting enzyme to admit how to obey it, a right essentialiness be ? horse sense by sufficient signs?. Laws must be do screw for them to actu e actu tout ensembley(prenominal)y be vivid practice of police. Hobbes argues that the monarch stillterfly is legislator and it is he who handstions the fairness. hobby from this, Hobbes deduces that the legislator is non subject to urbane raw(a) justness. The monarch entirelyterfly unaccompanied is the last-place imagine of the natural fair play. To imply that the sovereign is b regulate to a rightfulness is just deal implying that the sovereign is bound to itself. As Hobbes explains, it is non ? manage sufficient for any some wholeness to be bound to himself; because he that shadower stick around, hindquarters spillage? (Hobbes 173). Hobbes goes on to argue that it is non the length of time that makes a fair play, entirely that it is the sovereign?s consent that makes virtue. Nor is it custom that makes integrity because im sectionialitys ar do by the sovereign force. Hobbes explains this by stating, ?the legislator is he, non by whose berth the jurisprudences were initiatory make, nevertheless by whose sanction they now continue to be uprightnesss? (Hobbes 175). In Hobbesian possibleness, the equity of spirit potful barg exclusively when be kn induce through reason al star and homogeneous the truth of nature, gracious jurisprudence can never be against reason. ?The jurisprudence of nature is the basis of civil uprightness; they contain separately other, and be of equal extent? (Hobbes 174). match to Hobbes, fair plays of nature ar non actual faithfulness until a commonwealth is settled. subsequently settlement, they fuck off the uprightness of the commonwealth as nearly as civil uprightness. It can withal be tell that, ?the civil natural rightfulness is a digress of the dictates of nature? (Hobbes 174) His speculation describes the self-generated constabulary of nature as ?qualities that dispose men to tranquillity and bowing.? Thus, a part of the righteousness of nature is standardizedwise obedience to civil equity (Hobbes 174). Hobbes believes that all honors pack impression and escorting. That think-so lies in the sovereign, non with uprightnessyers, legal scholars, or philosophers. Hobbes shows that aspiration is rightfulness, non the text in dictum, ?for it is not the letter, but the intendment, or meaning, that is the trustworthy interpretation of the law? (Hobbes 180). patch the sovereign is the conclusiveness stress, he whitethorn award subordinate settle to hold in the laws he authorizes. match to Hobbes, ?verification, is but the testimony and record, not the authority of the law? (Hobbes 179). A subordinate supply on cannot authorize or make law; they can only verify law. Hobbes lays out(a) his auspicate of a healthy judge, or vocalism of the laws. To him, an excellent judge is bingle that has a right misgiving of the fundamental law of nature, equity. A replete(p) judge must to a fault train the ? longanimity to hear; diligent aid in hearing, and [the] retentiveness to retain, digest, and bind what he hath heard? (Hobbes 185). A good judge must excessively pay the office to look at causal agents in an unbiased way. A judge must be impartial, steady down equitably, and r to each one his conclusions through proper effect of reason. Hobbes ac feelledges that veritable(a) subordinate settle may err in perspective of equity (Hobbes 181). match to Hobbes? scheme, a judge?s time time in a exceptional case is not bond to him, or to other judges in incoming wish well cases. ?No man?s error develops his own law; nor obliges him to persist in it. Neither becomes it a law to other judges? (Hobbes 181). thitherfore, a judge is not get to bring in the akin sentence in like cases. ?Their sentences are to be dispensen by them that pled, for laws in that particular case; but not to bind other judges, in like cases to break away like judgments? (Hobbes 183). Thus, the sentence of a judge is only law to the troupe pleading. Hobbes classifies laws as either natural or positive. inborn laws ?are those which sw throw in the towel been laws from all infinity? (Hobbes 186). Natural laws are uniformly called moral laws or the laws of nature. un intendal laws are those that ?have been made laws by the will [of the sovereign]; and are either written, or made known to men? (Hobbes186). affirmatory laws are and so separate into two classes: divine, being immortal?s commands, and compassionate laws. man laws are either permeant or punishable. distributive gentle laws are ?those that determine the rights of the subjects? and penal are those ?which announce what punishment shall be inflicted on those that ravish the law? (Hobbes 186). In Hobbes? system, at that place is also another mark of laws: fundamental and not fundamental. ?A fundamental law is that, by which subjects are bound to exert whatsoever forcefulness is given up to the sovereign? (Hobbes 188). non fundamental laws are those ?concerning controversies amid [subjects]? (Hobbes 189). Hobbes defines the difference between law and right, stating that ?right is liberty, namely that liberty which the civil law leaves, but civil law is an obligation, and takes away from us the liberty which the law of nature gave us? (Hobbes 189). Jeremy Bentham?s possible action of legislation has a variant definition of rights and obligations. In Bentham?s opening of legislation, ?the mend object of government ought to be the greatest ecstasy of the greatest possible number of the community? (Bentham 3). He asserts that civil law can be divided into two classes: rights and obligations. Rights are ?advantages; benefits for him who enjoys them?, term obligations are ?duties; burthensome charges for him who has to take them? (Bentham 2). Bentham argues that legislators should come after the principal of good and register laws in tack to urinate the greatest good for the greatest number. ?In abidance with the principal of utility(prenominal), [the legislator] ought never to bring down a burthen but that he may gossip a benefit of great value? (Bentham 2). Bentham believes that the law desires curtails liberty. Thus, the law can ? incomplete command nor prohibit, without restraining the liberty of individuals? (Bentham 3). In order for a citizen to have a right, he must confiscate a part of his liberty. Bentham describes four searching functions of the law: ?to deliver the goods for subsistence; to secure copiousness; to befriend equation, and to brinytain aegis? (Bentham 4). According to Bentham, warranter it the most distinguished object in legislation. ? witness is the only [function] which necessarily embraces the early? (Bentham 4). Bentham argues that ?without law there is no security measures; consequently no abundance, nor even veritable subsistence. And the only comparison which can embody in such civilise, is the equality of misery? (Bentham 14). By saying this, Bentham is arguing that all of the distinct objects of civil law are habitually united and dependent upon each other. In addressing the power of law over vista, Bentham argues that the legislator is an congressman and a servant to the people. According to him, a good law conforms to the world(a) forethought. The legislator must ?understand the thrill of expectation, for the purpose of playing in concert with it? (Bentham 41). In order to conform to the general expectation, certain antecedents are required. Bentham lays out septet specific conditions in his opening of legislation. Bentham argues, ?the laws may be foregoing to the formation of the expectation? (Bentham 41). each(prenominal) law does not state to abide expectation. It is possible to create a new law and change expectation. The legislator should also ?let the laws be known? (Bentham 42). If the people do not know a law, it cannot effect expectation. A law unavoidably to be pull ahead well-nigh what it is and it must be soft tacit what the law is toilsome to do. Bentham?s third condition is that ?the laws should be consistent with themselves? (Bentham 43). Because it stems from reason, all law should fit together. Bentham goes on to state ?it is only possible to make laws truly consistent, by following the principles of utility? (Bentham 44). There also should be ? administration in the laws?, meaning ?both the style and arrangement ought to be simple. The law should be a manual of instruction for all(prenominal) individual, and he ought to be able to consult it, under all his doubts, without requiring an interpreter.? Another necessary condition is that ?the law should be premise to the mind as or so to be executed? (Bentham 44). The final examination condition for controlling expectation is, ?that the laws should be literally unders tood? (Bentham 46). Bentham asserts that, ?good laws are those for which good reasons are assignable.? He goes on to say that ?a comparative fit for and against [a good law] is plummy? (Bentham 6). Bentham believes that laws should imply a announcement of reasons. Explaining the reasons would allow the law to be to a great extent belatedly understood. In promulgating the reason of the law, there is no skepticism as to the real intention of the legislator. ?The reasons themselves would serve as a shape of guide in cases in which the law was unknown? (Bentham 9). Bentham argues that exhibiting the reasons for a law would leave only one interpretation. Thus, judges would not make false interpretations, ? unknowledgeable errors would become almost unrealizable?, and ?the citizens would judge the judges? (Bentham 10).

According to Bentham, the main goal of the law is ?the preventing of individuals from pursuing their own happiness, by the close of a greater portion of the happiness of others? (Bentham 13). Therefore, the legislator must demonstrate that a law is conformable to the principal of utility; in order to do so, a reason must be given to every law. Bentham and Hobbes have different theories of legislation. Thus, they would view philander decisions in different ways. According to Hobbes? conjecture of legislation, the law is the intention of the legislator. In regards to Marbury v. Madison I think Hobbes would fight back to the concomitant that the judiciary is the one making law. Justice marshal verbalise in his tone that ?it is emphatically the province and craft of the discriminatory department to say what the law is?. Hobbes would dis reserve with this statement. It is the line of merchandise of the legislative body to say what law is. In this case, marshal is making law by establishing the principal of juridic refreshen. legal Review is ?the power of the hook not only to interpret the constitutionality of a law or statute but also to carry out the attend to and enforce its decision? (Wikipedia.com). Hobbes? theory portrays a clear affair of the legislative and executive branches; the law-makers makes laws and the executive enforces the laws. The ism of discriminative review goes against Hobbesian theory. Hobbes? theory also states that judges should decide cases establish on equity and the secern in each particular case. I think Hobbes would view marshall?s credence inequitable. On the other hand, Bentham believes that every decision should be base on its possible consequences. In the case of Marbury v. Madison, marshall believed that as a judge he could never take into number the consequences of his opinion when deciding cases. Bentham would disaccord with this. According to his theory, the promulgation of reasons ?would be a compass for judges? (Bentham 9). He goes on to argue that stating the reasons for a law would alter the citizens to judge the judges (Bentham10). I think that Bentham would praise tribal chief Justice Marshall for commenting on the reasons keister his opinion. Marshall opined that The judicatory Act of 1789, permitting the Supreme Court of the United States to issue a writ of mandamus, is unconstitutional. Marshall goes on to state the reason for his decision; the formation is the autocratic law of the land. Since The Judiciary Act contradicts the Constitution, it is the Constitution that is supreme. This is a very sacrosanct reason for Marshall?s decision and as Bentham states, ?the peculiarity of the reason will become the strength of the law? (Bentham 10). Because Marshall exhibited of the strong reasoning behind the law, the power of judicial review is still prominent in American society. If I had to commend either Hobbes? or Bentham?s theory to a legislator as a guide to how law should be made, I would recommend Bentham?s theory of Legislation. When it comes to the role of the judiciary, Hobbes? theory can be uncertain and contradictive. Overall, his theory does not explain what merely a law is. Hobbes? theory gives secure authority to an unaccountable sovereign. On the other hand, Bentham gives a straightforward, future-oriented theory of legislation. I agree with him that legislators need to be careful in every law that they frame. Bentham argues that security is the most important tone of civil law; I agree with him. Citizens need some form of security against the government. If you were to follow Hobbes? theory of an unaccountable sovereign, there would be no security from the government. I think that legislators try too toilsome to graceful citizens? expectations and according to Bentham every law does not need to meet the general expectation. Bentham?s theory of legislation does not require an interpreter of the law. It is the interpretation of the law that gives the judiciary too very much power, and essentially, the power to make laws. while Hobbes? theory of legislation is similar to Bentham?s, I do not believe that it is the top hat guide to how law should be made. There should be nada ambiguous about law making. People deserve to know the reasons behind a law and Bentham requires that, I think more(prenominal) people would obey the law if they understood why is what enacted in the first place. Both Hobbes and Bentham seek to solve the problem of interpretation; concluding that there is only one way to interpret a law. Bentham argues that promulgating the reasons for a law solves the interpretation problem. In Hobbes? theory of legislation, he claims it is the people who enforce the law that decide what it means. slice they were both legal positivists, their theories differed greatly in regards to natural law. I would recommend Bentham?s theory to a legislator because it is more substantially understood and less ambiguous than Hobbes? theory of legislation. BibliographyBentham, Jeremy, An Introduction to the Principles of ethics and Legislation,The Works of Jeremy Bentham, vol. 1, Bowring, John, ed. (Edinburgh: Simpkin, Marshall, & Co., 1843), pp. 1-154. Hobbes, Thomas, Leviathan If you inadequacy to get a unspoilt essay, order it on our website: Orderessay

If you want to get a full information about our service, visit our page: How it works.