Ancient and Modern Philosophers on Law

Hobbes the Modern Philosopher

Thomas Hobbes has written a book ‘Leviathan” in which he has expressed philosophies on most topics under the sun in the period of the English Civil War. He is remembered as a political philosopher. The foundation for Western philosophy with the social contract theory has been attributed to him. Hobbes is also remembered for his forays into history, geometry, physics and ethics apart from philosophy. Born prematurely on the night of the Spanish Armada, he was educated at various places and reached the Magdalen Hall which is linked with the present day Hertford College of Oxford University (Hobbes, 1660). As a tutor to the son of the wealthy William Cavendish, he utilized an opportunity to travel to expand on his knowledge. His philosophical life began long after he had rubbed shoulders with the likes of literary figure Ben Johnson and thinker Francis Bacon. It was only in 1629 did he think seriously of expounding his philosophies and developing them for mankind.

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Hobbes’ views

Man is considered an exquisite work of nature. Art is spoken of as an imitation of the rational human being. Leviathan, the Commonwealth or State is likened to an artificial man but towering above him in stature and strength so that it may protect and defend him (Hobbes, 1660). The beautifully expressed comparison of the State to a human body is amazing. Sovereignty is the artificial soul providing life and motion to the whole concept of Leviathan. The magistrates and the judiciary are simulated to the joints of the body which make actions possible through efforts. Reward and punishment are the nerves which ensure people stick to rules and do their duty. The strength or power is represented by the wealth of the nation and people. The people’s safety is relying on the businesses. Counsellors are those who keep reminding everyone about mistakes or deviations from normal and likened to memory (Hobbes, 1660). Equity and Laws are taken as the “artificial reason and will”. Hobbes had specific ideas about law.

On law

Human beings have the liberty to do what they want by using their own power for self preservation. This is the right of nature or jus naturale (Hobbes, 1660). He also can do what he believes to be right. Liberty means that there are no outside obstacles to his thoughts and actions. Obstacles can interfere in his liberty but till then he can do what he feels right by his own judgement and reasoning. However the law of nature (les naturalis) forbids him to destroy himself or eliminate the conditions or environment which help in saving his life. He cannot omit any factor which helps to preserve his life. Right and law are different. Right has the perspective of liberty while law determines things and binds a person (Hobbes, 1660).

A person should not think that he has the liberty to another person’s body until the other

“has declared war”. Everyone then would be having his own reasons for his actions. If this is the situation, things would go out of hand. No one has security then, however strong he is. Attempts must then be made to negotiate peace. The fundamental rule of nature requires the search for peace (Hobbes, 1660). The second rule is one of defence at all costs. Endeavouring peace means he may have to forfeit some of his rights and allow some liberty to others. If one person is willing to part with some liberties but others are not satisfied even then, the condition again reverts to one of no compromise. The law of the Gospel states that one may do to others what they are doing to you. By renouncing a right, the other person should not acquire a new right which he did not enjoy earlier. Renouncing rights involves the giving up of some liberty, not bothering about who gets it. Transferring means doing it so that some known person is gets the benefit. Following the giving up of the right, he should never interfere in that other person’s right. He has a duty to avoid creating problems in the rendering of justice. It amounts to injustice and injury (Hobbes, 1660). Bonds are records. The right of transferring is a voluntary act. Some rights cannot be transferred. When assaulted all people are liable to resist for fear of their lives. This right to preserve one’s life and to adopt means to increase one’s security cannot be written off.

Contract is mutual transferring of rights (Hobbes, 1660). The transferred rights for goods or land may occur some time after the contract. One contractor may sign his portion and leave it for the other to sign and accept the contract. The factor of trust is included in this contract. The contract done on the first person’s involvement will be called pact or covenant. The performance of the second person is called keeping the promise. If he fails to do it, he has committed violation of faith.

When the transferring is not mutual and does not involve the second party, it would not be a contract but a free gift. The first person may have done this to gain friendship or service or believe that he is doing charity or a good deed which may get him rewards in heaven or he may be relieving himself from some earlier pain and hoping to be compassionate (Hobbes, 1660). Contracts can be express or inferences. The express ones are worded with phrases like “I give” or “I grant’ or “I will give” or I will grant’. Signs of inference indicate the consequences of words, silence, actions or forbearing of an action and whatever the contractor wishes. If the words promise some act when circumstances change, it is a mere promise which cannot be an obligation. The arrangement of words can change meanings legally. “I will that this be yours tomorrow” means that the other is sure to get it when tomorrow comes and is being transferred today itself. “I will give it to you tomorrow” means that the act of giving will be done tomorrow. Contracts if worded even in the future remain contracts. A promise in buying and selling land or property is equivalent to a covenant.

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Meritum congrui is the right by the free grace of the other person or with limitations.

Meritum condigni means that the right has no limitations set. Hobbes compares these terms to the right of man in the presence of God where he is permitted to walk this earth ex congruo not ex condigno (Hobbes, 1660). In a covenant where both parties are not performing now, in the case of suspicion by either, it becomes void. However if there is a binding over them by an external power, this need not become void. This is usually possible in a contract concerning an estate. If an event has occurred which changes the circumstances of the covenant, it again becomes void. When a transfer is promised, all that goes with the transferred thing or place must be handed over. The person who sold the object or land cannot exclude all the paraphernalia associated with the sale. He cannot turn a stream away from the mill when he sells the mill as the stream was providing the power to run the mill. He also speaks about the rights of the government which has a responsibility towards its citizens and so has to ensure that things run well by levying necessary tax from the public (Hobbes, 1660). Covenants cannot be made without mutual acceptation. A covenant cannot promise anything impossible. A person is free from a covenant only by completing the performance or by being forgiven. Covenants made due to fear are obligatory where it is a contract for the exchange of life or money. Usually a previous covenant prevents another covenant being made by the same person. A right to save oneself from danger cannot be incorporated in a covenant. A covenant cannot be used to accuse oneself of a nonpardonable crime. This becomes punishable. A covenant cannot also be used to accuse someone if this would mean causing the misery of that person especially if the accuser did not give information willingly (Hobbes, 1660). Accusations extracted after torture are not accepted. Swearing in the name of God has become a system by which man professes truth by the faith he believes in. A covenant is binding even without the oath if the person is of high integrity. If he is not, even swearing by God may not produce truth from him. The making up of a Commonwealth can play the role of a coercive power to force men who participate in covenants (Hobbes, 1660).

The meanings of just and unjust are different in describing persons and actions. In the former, the meanings are those of conformity or non conformity of manners. In the latter, the judgement is on the reasoning of the actions. Righteous and just may be used in different contexts but mean the same. The aptitude to do injury is called injustice. Justice of actions

can be commutative and distributive (Hobbes, 1660). Commutative refers to the equality of value of the things contracted for and distributive is the distribution of equal benefit to people of equal merit. Commutative justice is the justice of a contractor and distributive is that of an arbitrator.

Complaisance or accommodating to others is a law of nature. The people are then sociable. Hobbes says that men must learn to repent previous crimes. Revenge is not to be taken as old evils must be forgotten. People have a tendency to hate, contempt and fight. He adds that all men are equal. Civil laws have actually introduced inequality. Moral philosophy is the science of what is “good and evil” (Hobbes, 1660).

Socrates on law

The Republic of Plato is on of the longest works by Plato. He has interwoven life and speculation and connected politics and philosophy. Plato was the greatest metaphysical genius. Logic and psychology has been based on the works of Socrates and Plato. “The principles of definition, the law of contradiction, the fallacy of arguing in a circle, the distinction between the essence and accidents of a thing or notion, between means and ends, between causes and conditions; also the division of the mind into the rational, concupiscent, and irascible elements, or of pleasures and desires into necessary and unnecessary”– these and other great forms of thought are all of them to be found in the Republic.

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Socrates had very strong opinions on law. He talked about different forms of government which were democratic, aristocratic and tyrannical (Plato, 1991). He said that laws were made for the rulers and had little consideration for the common man. When the common man was involved, sufficient punishment would be meted out. The interests of the government or top people were the considerations for laws. In his days, justice was the interest of the stronger. He affirms that laws were meant to be followed and disobedience was not right or justified. Human beings were capable of making mistakes (Plato, 1991). However these must be overcome by remembering that even an injury on oneself is a wrong. He believed that injustice is not more gainful than justice. The argument with Thrasymachus, a friend, brought out his ideas. There may be an occasional man who was unjust and able to commit wrongdoing but that did not mean injustice is right.

Socrates and his friends spoke of four defective forms of government. He believed that the aristocratic state was one type of government which could be reduced to timocracy which was the least unjust form of corrupt government. Timocracy probably occurred due to a mixing of races (Plato, 1991). The government was led by a contentious and ambitious man. The oligarchy was ruled by a wealthy landlord who was greedy and unprincipled. The equilibrium was lost and class division between the rich and poor became evident. The oligarchic leader was only interested in acquiring more. He did not condescend to roguery merely due to his status.

The democratic state was formed when a middle class group of people arose in the presence of the extremely rich and the very poor. The middle class understood the unjust principles of the rulers and threw them out (Plato, 1991). Plato believed that democracy was actually an equality of unequals. Plato said that every man had a right to pursue good. The philosopher was considered the man of reason. The democratic leader was a scattered personality who did not stick to reason for his actions. A revolution could be provoked and the then rulers would be thrown out. The magistrates and leaders were elected from among the people. This government could become disordered due to the leadership of a weak personality with uncontrolled desires.

Soon the democracy could get changed into tyranny. The tyrant because of his cruel attitudes could kill and also be killed. All opposition would be eliminated. The whole state would be in chaos and the worst slavery could flourish (Plato, 1991). Intrigue, deception and misunderstanding caused the rulers to keep changing their affinity for benefactors. They kept shifting between the rich who were handy with their money and the poor who were quantitatively valuable with their votes. Soon the poor overthrew the leaders. The champion among the poor soon found himself in an enviable position of ruler and turned into a tyrant. The position was misused for his own purposes.

The tyrant succumbed to a kind of madness. He finished his funds and entered heavy debt. Then he turned to finish his parents’ assets (Plato, 1991). He went on to other homes and temples. If he was able to do so, he would deplete the state treasuries and turn into the most miserable character of the land. The public tyrant would be rejected by all and if possible be killed.

Socrates compared the unjust man and just man in the state using a chimera as the sample (Plato, 1991). Socrates, Glaucon and Adeimantus had a discussion on justice in Plato’s book. Glaucon defined justice thus: “Justice is a legally enforced compromise between doing injustice to others and having injustice done unto oneself.” Socrates listened to his friends and began expressing his thoughts. The friends knew that he had strong beliefs on justice and morality. He began by discussing the State. The fundamental needs of man being shelter, food and clothes must be provided by the State (Plato, 1991). These necessities were provided by the division of labour with some system of trade to help the State satisfy these wants. Excess and greed could alter the fate of the State and war would be ineveitable.

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Machiavelli The Modern Philosopher

Machiavelli, a political philosopher, wrote the book “The Prince”. It is about the tale of a prince who saved his corrupt city-states and prevented foreign conquest. Being a political thinker who was practical in thought, his ideas about the Prince who saved his nation cannot be said to be based on scientific thinking (Machiavelli, 1998). He spoke of stability in the prince’s principality. The prince assumed methods to acquire the throne. The acquisition of power in the western world was examined. Machiavelli believed in ruling by force rather than law. The book demonstrated how power can be perpetuated and used effectively (Machiavelli, 1998). The principalities were described first. He then spoke of how the principalities could defend themselves against other states. The other essential components were sound laws and military forces. The raising of a good powerful army was considered important. A prince should be able to face any enemy on the battlefield. Relying on fortifications and dependence on others were not the features of a strong prince. Being defensive was also not good enough. If an army could not be raised, defensive fortifications were to be planned and effectively maintained. When a siege was won, it was his duty to boost the morale of the soldiers and his people (Machiavelli, 1998). Sufficient supplies during the attack would provide succour for many days. The siege would not be long drawn out as the enemy could not fight for long with a well-structured fort. Machiavelli discouraged mercenaries who were cowardly, thinking only of the money, unfaithful and uncouth. Troops borrowed from a neighbouring state could fail the ruler and then the ruler would become a dependent with obligation which could have been avoided. Sometimes the borrowed forces could act against him.

The main thought of the prince should be of war or the preparation before it. War was the component which was going to help him keep his power (Machiavelli, 1998). Keeping the body fit through hunting and learning all the nooks and corners of his kingdom while doing so would keep him updated and aware of it. His strategic military approach would depend so much on this knowledge. Getting information on able statesmen who had devised their war victories and the mistakes they made would help the prince to intellectually prepare for war. A prince who spent his peaceful times intelligently gathering information would be well prepared in the adverse times (Machiavelli, 1998). Avoiding war by providing compensations was a mistake. Louis gave his kingdom to Spain to avoid war. Soon he lost all the countries he had conquered as he did not manage the new places well.

The behaviour of a prince and how he carried himself in front of his subjects were important. Though basically the picture of a just and efficient rule must be transferred to his subjects, he must be prepared to understand that all people who appear before him were not straightforward and good. Stress must not be placed strictly for being good. Mercy, frankness, faith, humanity and religiosity must be the qualities perceived of the prince. However these must not be the real picture. All goodness may react sometimes (Machiavelli, 1998). Occasionally, it is the cunning and the shrewdness that offered better results. His reputation was definitely important but it must not show him up as a soft character with no power. Machiavelli said that a bad reputation must not be earned, but for a good reign, it was not essential. If the prince was too generous, the tendency for his subjects to become too greedy would be obvious. Moreover the coffers of the state may become empty faster. Higher taxes may have to be imposed to make up the difference. Being a little stingy may be even better. People’s hatred must not be earned (Machiavelli, 1998). Most princes would want to be loved by their subjects. However it would be better in the long run to be a little feared though this should never reach the point of hatred. Unnecessary interference in the lives of the subjects, their women and their disputes was not advisable by Machiavelli. The army must be kept united and as a large garrison. Cruelty to these soldiers may not be viewed as badly and the respect of the soldiers for a strong prince may become obvious. Hannibal and Scipio Africanus were remembered as efficient, feared and respected army leaders (Machiavelli, 1998). The prince’s words must be words of honour and kept. Machiavelli pointed out that the impression of a prince keeping his word of honour was sufficient for respect from the subjects. The prince if by his behaviour was able to keep the nobles and families satisfied need not fear conspirators. Louis XII of France who occupied Milan was quickly rejected by the new soldiers who had opened the gates for his entry. They had been deceived by the new King who had broken his promise of rewards. Louis made five obvious errors: “he destroyed the minor powers, he increased the strength of one of the greater powers in Italy, he brought in a foreign power, he did not settle in the country, he did not send colonies” (Machiavelli, 1998). He wanted to take over the Turkish government but could not do so as the Turk rule was well-organized enough not to let anybody in. When new nations had been conquered, there were three ways of ensuring that things were going to be fine: by ruining them, by residing among them and by allowing them to continue as they were previously.

It was observed that some monarchs kept on with wars and acquiring of new territories. His subjects would have had no time for rebellion. He would be respected as a great monarch but many subjects would have hated him as he would have had no time for their welfare. Machiavelli believed that taking sides in a war between two other states was advisable. One would be stronger with strong allies. If the allies were weaker, they would respect and look up to you. If you lost, then you could ally with the losers (Machiavelli, 1998). Machiavelli advised against allying with a stronger group.

The prince must select quality servants for his palace. This reflected upon the prince’s intelligence. Even if he was not sharp, he must be able to recognize the good ones. Advice given by the good ones must be taken as representative. Prior discussion with the good servants would be preparing the prince for the final discussion. Machiavelli believed fortune determines half of the actions to be taken in a reign. Being too cautious may not be good. The rule must be suited to the times.

The contrast of ideas

It is noticeable that Socrates had ideas which were relevant in his times. He said that laws were made for the rulers and had little consideration for the common man. He spoke of governments starting from aristocracy and going onto tyranny. It was a step-by-step change.

Modern philosophers Hobbes and Machiavelli did not take this form of philosophy.

Hobbes simulated a government to the human body. Sovereignty is the artificial soul providing life and motion to the whole concept of Leviathan. The magistrates and the judiciary were likened to the joints of the body; reward and punishment were the nerves and the wealth of the nation and people being the strength or power. Counsellors were those who kept reminding everyone about mistakes or deviations from normal and likened to memory (Hobbes, 1660). Equity and Laws were taken as the “artificial reason and will”. Hobbes had specific ideas about law.

Socrates had strict views of justice. Liberty was not a thought that came from him.

He probably gave the oldest version of the philosophy on political thinking where all things had to be controlled very strictly and found fault with most of the forms of government. Not giving favourable ideas about any form of government that could be adopted, we are at a loss as to what he has been trying to convey and if we could utilize his methods in our present days. However we must be thankful that somebody started thinking about these things so early. He believed in strictly following the routes of justice and not giving any room for an unjust act or wrongdoing.

Machiavelli spoke about the politics in royal principalities and was less scientific than the others. Practicality was his viewpoint. He also therefore incorporated the ideas of Hobbes’ liberty in his ideas. Hobbes spoke about jus naturale and les naturale. Machiavelli believed that human beings have the liberty to do what they can to preserve their lives naturally. This liberty allowed even some wrongdoings into the personality of the leaders.

Total justice did not have to be adopted by the prince who was being guided by the political thoughts of Machiavelli. Shrewdness was more important. Socrates would not have agreed to this. Hobbes’ ideas could accept what Machiavelli propagated.

Hobbes had discussed in fair detail about the social contract theory which had probably contributed to most of our Constitutional Laws on agreements and contracts. The discussion on this subject was not available in Plato’s book or Machiavelli’s “The Prince”.

References

Hobbes, Thomas. Leviathan: With Selected Variants from the Latin Edition of 1668. Edited with an introduction by Edwin Curley. Indianapolis, IN : Hackett Publishing Company, Incorporated, 1994.. (ISBN – 10:0872201775). Web.

Machiavelli, Nicollo. The Prince. Translation with an Introduction by Harvey Mansfield. Chicago, IL: University of Chicago Press, 1998 (ISBN – 10:0226500446). Web.

Plato, The Republic of Plato. Trans. Allan Bloom. Basic Books, 1991. Web.

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