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THOMAS HOBBES & NATURAL LAW THEORY (By-Sakshi Pranav Mehta)
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TOPIC: THOMAS HOBBES & NATURAL LAW
THEORY
Authordd By-Sakshi Pranav Mehta
LLM II Year
1. Introduction:
Natural law theory is a legal theory that recognizes law and morality as
deeply connected, if not one and the same. Morality relates to what is right
and wrong and what is good and bad. Natural law theorists believe that human
laws are defined by morality, and not by an authority figure, like a king or a
government. Therefore, we humans are guided by our human nature to figure out
what the laws are, and to act in conformity with those laws.
The term 'natural law' is derived from the belief that human morality
comes from nature. Everything in nature has a purpose, including humans. Our
purpose, according to natural law theorists, is to live a good, happy life.
Therefore, actions that work against that purpose -- that is, actions that
would prevent a fellow human from living a good, happy life -- are considered
'unnatural', or 'immoral'.
In Maneka Gandhi V/s. Union of India[1]
It was held that Section 10(3)(c) of the Passport Act confers vague and
undefined power on the passport authorities, it is violative of Article 14 of
the Constitution since it doesn’t provide for an opportunity for the aggrieved
party to be heard. It was also held violative of Article 21 since it does not
affirm to the word “procedure” as mentioned in the clause, and the present
procedure performed was the worst possible one. The Court, however, refrained
from passing any formal answer on the matter, and ruled that the passport would
remain with the authorities till they deem fit.
After this case various other
fundamental rights were included in the constitution to provide a good life to
citizens of this country as well as alien person also.
Laws have a purpose too: to provide justice. From a natural law
perspective, a law that doesn't provide justice (an unjust law) is considered
'not a law at all.' Therefore, a law that is flawed is one that no one should
follow. In short, any law that is good is moral, and any moral law is good.
Legal positivism is a legal theory
that is the opposite of the natural law theory. Legal positivists believe that
a law can be deeply flawed, and yet still be considered a law.
Natural law theory is not always a
simple school of thought. It should come as no surprise that the ethics
associated with natural law are equally complicated. The idea that the
definition of what is 'right' and what is 'wrong' is the same for 'every
person' is sometimes difficult to apply to complex ethical dilemmas.
Thomas Hobbes (1588-1679) is rightly
considered to be one of the most significant political thinkers of the
English-speaking people.
According to Macpherson, “Hobbes is a
formidable political theorist not because he is difficult to understand but
because his doctrine is at once so clear, so sweeping, and so disliked."
His paramount consideration for order in society emanated largely from his own
life resulting in his fear for violent death, and his utmost concern for
security, peace and order towards a commodious living. Hobbes openly declared
that the sovereign authority should not only protect its people, but also see
to it that they can secure, "all other contentment's of life".'
2. Social Contract Theory
Social contract theory, nearly as old as philosophy itself, is the view
that persons' moral and or political obligations are dependent upon a contract
or agreement among them to form the society in which they live.
For e.g.:- The traffic rules which
are made are to be followed by the people in order to ensure their safety.
Socrates uses something quite like a
social contract argument to explain to Crito why he must remain in prison and
accept the death penalty. However, social contract theory is rightly associated
with modern moral and political theory and is given its first full exposition
and defense by Thomas Hobbes.
After Hobbes, John Locke and
Jean-Jacques Rousseau are the best known proponents of this enormously
influential theory, which has been one of the most dominant theories within
moral and political theory throughout the history of the modern West.
3. Modern Social Contract Theory:
Thomas Hobbes
The period of renaissance in the
history of development of Natural Law may also be called the modern classical
era which is marked by rationalism and emergence of new ideas in different
fields of knowledge.
Thomas Hobbes, 1588-1679, lived
during the most crucial period of early modern England's history: the English
Civil War, waged from 1642-1648. To describe this conflict in the most general
of terms, it was a clash between the King and his supporters, the Monarchists,
who preferred the traditional authority of a monarch, and the Parliamentarians,
most notably led by Oliver Cromwell, who demanded more power for the quasi-democratic
institution of Parliament. Hobbes represents a compromise between these two
factions. On the one hand he rejects the theory of the Divine Right of Kings,
which is most eloquently expressed in his Patriarcha or the Natural Power of
Kings[2],
(although it would be left to John Locke to refute Filmer directly).
Hobbes also rejects the early
democratic view, taken up by the Parliamentarians, that power ought to be
shared between Parliament and the King. In rejecting both these views, Hobbes
occupies the ground of one is who both radical and conservative. He argues,
radically for his times, that political authority and obligation are based on
the individual self-interests of members of society who are understood to be
equal to one another, with no single individual invested with any essential
authority to rule over the rest, while at the same time maintaining the
conservative position that the monarch, which he called the Sovereign, must be
ceded absolute authority if society is to survive.
In Demonetisation in 2016[3]
The demonetisation of high value
currency denominations featuring Rs. 500 and Rs. 1,000 notes were banned
effective 8 November midnight by Prime Minister Narendra Modi in a televised
announcement. The decision to ban high value notes was taken to weed out black
money and counterfeit notes from the system which had been deep-rooted in the
economy for the past many decades. Hence the society had to follow the rules
laid down by the Sovereign in order to survive peacefully.
Hobbes' political theory is best
understood if taken in two parts: his theory of human motivation, Psychological
Egoism, and his theory of the social contract, founded on the hypothetical
State of Nature. Hobbes has, first and foremost, a particular theory of human
nature, which gives rise to a
particular view of morality and
politics, as developed in his philosophical masterpiece, Leviathan, published
in 1651.
The Scientific Revolution, with its
important new discoveries that the universe could be both described and
predicted in accordance with universal laws of nature, greatly influenced
Hobbes. He sought to provide a theory of human nature that would parallel the
discoveries being made in the sciences of the inanimate universe. His
psychological theory is therefore informed by mechanism, the general view that
everything in the universe is produced by nothing other than matter in motion.
According to Hobbes, this extends to
human behavior. Human macro-behavior can be aptly described as the effect of
certain kinds of micro-behavior, even though some of this latter behavior is
invisible to us. So, such behaviors as walking, talking, and the like are
themselves produced by other actions inside of us. And these other actions are
themselves caused by the interaction of our bodies with other bodies, human or
otherwise, which create in us certain chains of causes and effects, and which
eventually give rise to the human behavior that we can plainly observe. The gradual
disintegration of memory, for example, can be explained by inertia.
As we are presented with ever more
sensory information, the residue of earlier impressions ‘slows down' over time.
From Hobbes’ point of view, we are essentially very complicated organic
machines, responding to the stimuli of the world mechanistically and in
accordance with universal laws of human nature.
In Hobbes' view, this mechanistic quality of
human psychology implies the subjective nature of normative claims. ‘Love’ and
‘hate’, for instance, are just words we use to describe the things we are drawn
to and repelled by, respectively. So, too, the terms ‘good’ and ‘bad’ have no
meaning other than to describe our appetites and aversions. Moral terms do not,
therefore, describe some objective state of affairs, but are rather reflections
of individual tastes and preferences.
In Regina v/s Dudley and Stephens[4]
Thomas Dudley and Edwin Stephens
(defendants) were on the crew of an English yacht, along with fellow seamen
Brooks and Richard Parker. Due to a storm, the men were lost at sea in an open
boat for approximately twenty-four days. They had no water except for
occasional rainwater, and little food. After over a week without any food,
Dudley and Stephens approached Parker, who was sick and in a much weaker state,
and slit his throat. The three remaining men fed off Parker’s body for four
days until a passing ship rescued them. Dudley and Stephens were put
on trial in order to determine
whether the act of killing Parker was murder.
The jury determined that the men
would not have survived to the time of rescue if they had not fed off Parker’s
body and that, at the time, it was reasonable to assume they would die of
starvation before they were rescued. The jury also determined that Parker would
likely have died before the other three men.
The jury made these conclusions of
fact but was ultimately unable to reach a verdict as to Dudley and Stephens’
culpability. It instead submitted a special verdict requesting the Court to
determine Dudley and Stephens’s culpability based on its findings of fact.
In addition to Subjectivism, Hobbes
also infers from his mechanistic theory of human nature that humans are
necessarily and exclusively self-interested. All men pursue only what they
perceive to be in their own individually considered best interests - they
respond mechanistically by being drawn to that which they desire and repelled
by that to which they are averse.
For Critical explanation- This is a universal claim: it is
meant to cover all human actions under all circumstances – in society or out of
it, with regard to strangers and friends alike, with regard to small ends and
the most generalized of human desires, such as the desire for power and status.
Everything we do is motivated solely by the desire to better our own
situations, and satisfy as many of our own, individually considered desires as
possible. We are infinitely appetitive and only genuinely concerned with our
own selves.
In the case of Suresh Kumar Koushal and Others v/s NAZ Foundation and
Others[5]
The NAZ Foundation filed a writ
petition in the Delhi High Court challenging the constitutional validity of
Section 377 of the Indian Penal Code. This section penalizes unlawful sexual
acts ‘against the order of nature’ which has the effect of criminalizing even
consensual sexual intercourse between two adults of the same sex or even of the
opposite sex indulging in penile non-vaginal sexual activities. The Delhi High
Court decided that Section 377 of the Indian Penal Code, 1860 disregarded
various fundamental rights, including the right to privacy and right to dignity
under the fundamental right to life and liberty (Article 21), the right to
equality (Article 14), and forbiddance of separation on grounds of sex (Article
15). The said decision was appealed against in the Supreme Court of India and
it was held that the Delhi High Court was wrong in its findings and was also
wrong in reading down the section to allow consensual homosexual activities
between two adults of the same sex.
According to Hobbes, even the reason
that adults care for small children can be explicated in
terms of the adults' own
self-interest (he claims that in saving an infant by caring for it, we become
the recipient of a strong sense of obligation in one who has been helped to
survive rather than allowed to die).
In addition to being exclusively
self-interested, Hobbes also argues that human beings are reasonable. They have
in them the rational capacity to pursue their desires as efficiently and
maximally as possible. Rationality is purely instrumental. It can add and
subtract, and compare sums one to another, and thereby endows us with the
capacity to formulate the best means to whatever ends we might happen to have.
The Right to information Act was
brought in existence because of the will of the people of India in order to
bring transparency in the acts of the Public Servants.
According to Hobbes, the
justification for political obligation is this: given that men are naturally
self-interested, yet they are rational, they will choose to submit to the
authority of a Sovereign in order to be able to live in a civil society, which
is conducive to their own interests. Hobbes argues for this by imagining men in
their natural state, or in other words, the State of Nature.
In the State of Nature, which is
purely hypothetical according to Hobbes, men are naturally and exclusively
self-interested, they are more or less equal to one another, (even the
strongest man can be killed in his sleep), there are limited resources, and yet
there is no power able to force men to cooperate.
The Directive Principles of State
Policy are the best examples of such type because they are those laws which can
only be observed and not those which can be punished for, for the violation of
such laws.
Given these conditions in the State
of Nature, Hobbes concludes that the State of Nature would be unbearably
brutal. In the State of Nature, every person is always in fear of losing his
life to another. They have no capacity to ensure the long-term satisfaction of
their needs or desires. No long-term or complex cooperation is possible because
the State of Nature can be aptly described as a state of utter distrust. Given
Hobbes' reasonable assumption that most people want first and foremost to avoid
their own deaths, he concludes that the State of Nature is the worst possible
situation in which men can find themselves. It is the state of perpetual and
unavoidable war.
Recently the Sec of 498A of the
Indian Penal Code was amended which had both positive as well as negative
duties on the State. The situations where women who misused the applicability
of this Sec against their husbands were taken into consideration and hence the
laws were amended providing certain guidelines in order to protect the male class
in the society.
The situation is not, however,
hopeless. Because men are reasonable, they can see their way out of such a
state by recognizing the laws of nature, which show them the means by which to
escape the State of Nature and create a civil society. The first and most
important law of nature commands that each man be willing to pursue peace when
others are willing to do the same, all the while retaining the right to
continue to pursue war when others do not pursue peace. Being reasonable, and recognizing
the rationality of this basic precept of reason, men can be expected to
construct a Social Contract that will afford them a life other than that
available to them in the State of Nature. This contract is constituted by two
distinguishable contracts.
First, they must agree to establish
society by collectively and reciprocally renouncing the rights they had against
one another in the State of Nature. Second, they must imbue some one person or
assembly of persons with the authority and power to enforce the initial
contract. In other words, to ensure their escape from the State of Nature, they
must both agree to live together under common laws, and create an enforcement
mechanism for the social contract and the laws that constitute it. Since the sovereign
is invested with the authority and power to mete out punishments for breaches
of the contract which are worse than not being able to act as one pleases, men
have good, albeit self-interested, reason to adjust themselves to the artifice
of morality in general, and justice in particular. Society becomes possible
because, whereas in the State of Nature there was no power able to
"overawe them all", now there is an artificially and conventionally
superior and more powerful person who can force men to cooperate.
In the case of Bijoe Emanuel and Others v/s State of Kerela
and Others[6]
The Supreme Court said all cinema
halls across the country should play the national anthem and that those present
“must stand up in respect” to “instil a feeling within one a sense of committed
patriotism and nationalism”. Hence any person violating such rules and
guidelines would be held liable for punishment. Hence the Supreme Court dealt
with the law as it was laid down in the Articles of the Constitution.
While living under the authority of a
Sovereign can be harsh (Hobbes argues that because men's passions can be
expected to overwhelm their reason, the Sovereign must have absolute authority
in order for the contract to be successful) it is at least better than living
in the State of Nature. And, no matter how much we may object to how poorly a
Sovereign manages the affairs of the state and regulates our own lives, we are
never justified in resisting his power because it is the only thing which
stands between us and what we most want to avoid, the State of Nature.
According to this argument, morality, politics, society, and everything
that comes along with it, all of which Hobbes calls ‘commodious living' are
purely conventional. Prior to the establishment of the basic social contract,
according to which men agree to live together and the contract to embody a
Sovereign with absolute authority, nothing is immoral or unjust - anything
goes. After these contracts are established, however, then society becomes
possible, and people can be expected to keep their promises, cooperate with one
another, and so on. The Social Contract is the most fundamental source of all
that is good and that which we depend upon to live well. Our choice is either
to abide by the terms of the contract, or return to the State of Nature, which
Hobbes argues no reasonable person could possibly prefer.
4. Human Nature
Hobbes' conception of sovereignty is
based on his idea about human nature. Hobbes has made a fundamental departure
from his contemporaries by saying that man is essentially nasty, brutish and an
uncivilised creature. He made individual, as against society, the spring board
of his thought. Before him Plato, Machiavelli, St. Augustine and St. Thomas had
developed their philosophies but they made society and not the individual as a
unit.
Hobbes concluded that men by birth
were equal in intelligence but it is the desire for having the same thing which
made them quarrel with one another. Men will never quarrel with one another if
they are not willing to get one and the same thing. He believed that
competition, glory, and difference make people brutal and quarrelsome. It is an
uncontrolled desire of human beings that changed the whole concept of basic
principles of the society. His conception of human nature is essentially based
on two basic factors.
'The first one is that all men are
equal. Nature has made men so equal with faculties of body and mind."
For e.g.- Art 14 of the Indian
Constitution gives equality before law and equal protection of laws to every
citizen in the country.
Secondly, he held that man is not an
idle spectator in political scenario but always ready to struggle and achieve
something higher.
Hobbes seems to have held that the
cause of anything is a form of motion which both generates that thing and
enters into its definition and which can be discovered and specified apriori.
It is necessary to consider the properties and effects of uniform motion, and
of the combination of
such motions (this is simply geometry
applied to motion), and the laws of the action and reaction of moving bodies
(Physics). All this is completely abstract and possesses demonstrative
certainty. But' in passing from, geometry to physics, it becomes necessary to
account for the operation of our senses and to explain observable phenomena
such as the movement of the stars and the tides. To do this, it is necessary to
bring in new evidence or conjecture that, -in conjunction with the abstract
principles one already possesses, will enable one to reach conclusions that can
now be only plausible because the new principles with which it is necessary to
deal are no longer fabricated in definitions but incorporated in the things
themselves.
After Physics comes Moral Philosophy,
"the motions of the mind" such as appetite, aversion, fear etc.,
which have to be treated after Physics because they have their causes in sense
and imagination. Lastly, Civil Philosophy may either be deduced by synthesis
from what has gone before, or pursued independently by the analytic method. In
the latter case, political phenomena are traced back to their causes in human
nature, i.e., to the passions which are known to every man by introspection. In
order to discover the causes of a well-ordered Commonwealth, man must break it
down by analysis into its constituent parts. These are the matter, generation
and form of civil government, and Hobbes starts by considering its matter,
which is the condition of man in the state of nature. According to Hobbes, the
natural tendency of any organism is to preserve its own life. In a state of
nature, a man desires self-preservation and will do anything that seems to him
necessary for selfpreservation.
The desire for self-preservation
gives rise to a desire for pleasure, since pleasure is the appearance in
consciousness of what conduces to life. Conversely, there is an aversion from
pain, pain being the mental appearance of what conduces to death. According to
Hobbes, man’s desire for continued preservation leads him to desire not only
pleasure now, but a store of pleasure for the future as well. This is possible
only by the acquisition of power. Power is the means to satisfy man’s desires.
Therefore, every man naturally desires power and more power, "a perpetual
and restless desire of power after power that ceaseth only in 2death"[7] If
one person had powers so great that no one could resist him, he would be master
of all.
This is the position of God. God is
irresistible, in consequence of which he has the right of dominion. But among
men in a natural state, none has the ability to attain for himself powers so
great that he can have dominion over all. Yet, all men are equal in their
capacity to acquire power.
As such, they must have equal hope of
attaining their ends, and so, if any two desire the same thing, they must
become enemies and distrust one another. In the face of this mutual distrust,
the only reasonable way to secure oneself is by anticipation, so as to get
power over others. Some men would be content with a moderate power, but
unfortunately, others are not, and so a man "cannot assure the power and
means to live, well which he hath present, without the acquisition of
more".[8]
The result is
that as long as men lack a common power to keep them all in awe, they must
remain "in a state of war of every man against every man and in this
state, there is no possibility of progress or civilization, but only continual
fear and danger of violent death, and the life of man, solitary, poor, nasty,
brutish and short".[9]
Thus, Hobbes supposes men to be necessarily competitors. If men’s powers be
opposed, one must admit the necessity of struggle and enmity among them. If the
state of nature were a state of plenty, then men might refrain from hostility.
But given that a man, in order to survive, may need some object which is also
needed by his fellows, then competition necessarily follows. Enmity arising out
of competition leads to enmity arising out of diffidence. It is in the interest
of potential competitors to forestall one another from the outset and this is
no more than his own conservation requireth, and is generally allowed".*
This explains the conversion of
limited enmity into unlimited enmity. A further source of conflict is found in
the desire for glory, whereby man must assure himself of his ability to
maintain himself, and convince others of this ability. Thus, there are three
principal causes of quarrels among men: competition for the means of satisfying
their appetites, diffidence or mistrust which moves them to attack others for
fear of being attacked by them, and glory which makes them attack for the sake
of reputation.
5. NATURAL LAWS THEORY (Laws Of
Nature)
The laws of nature are rational
precepts, laying down what reason requires, rather than merely permits. Or put another way, what is contrary to the laws
of nature is what is contrary to reason. ' To speak of these precepts as laws
would seem, from the passage quoted from De Cive, to be only to say that action
against them would be wrong. Since "wrong" means only "repugnant
to right reason",3 the simple conclusion would be that the laws of nature
are precepts laying down the requirements of "right reason". This is
the formal definition of a law of nature. The material definition of a law of
nature follows directly from Hobbes’s own account, although it could also be
constructed from the formal definition, by substituting for "the
requirements of right' reason",
a phrase indicating the actual content of
those requirements. To state it otherwise, the laws of nature are equivalent to
precepts laying, down what is required for preservation.
A law of nature is different from the
right - of nature. The right of nature is what we may do, what we are at liberty
to do, in order to preserve our lives. On the other hand, a law of nature
states an obligation or a precept or rule; it tells us what we should do, what
we are obliged to do, in order to preserve our lives. To use the language that
was later to be introduced in ethical theory by Immanuel Kant, a law of nature
is a hypothetical assertoric imperative; is a rule prescribing the means
necessary to an end we all desire, viz., our preservation.
Therefore, the first law of nature is
to seek peace. This law is the most general conclusion that man derives from
his experience of "the war of all against all".® Clearly, it depends
on that experience, whether real or imagined. Although, hypothetically, a man
might conclude that war is necessarily inimical to human life, only an analysis
of the human condition with all social bonds removed shows that peace is the
primary requisite for preservation.
6. Conclusion
According to this thus morality,
politics, society, and everything that comes along with it, all of which Hobbes
calls ‘commodious living' are purely conventional. Prior to the establishment
of the basic social contract, according to which men agree to live together and
the contract to embody a Sovereign with absolute authority, nothing is immoral
or unjust - anything goes. After these contracts are established, however, then
society becomes possible, and people can be expected to keep their promises,
cooperate with one another, and so on. The Social Contract is the most
fundamental source of all that is good and that which we depend upon to live
well. Our choice is either to abide by the terms of the contract, or return to
the State of Nature, which Hobbes argues no reasonable person could possibly
prefer.
Bibliography
1. Edgar Bodenheimer jurisprudence (6th
Indian reprint 2009)
2. Dr. Anup Chand Kumar’s Principles of political
science (21st revised edition)
3. Dr. Bijal N. Mani Tripathi
Jurisprudence (15th edition 2004)
Webliography
Article Information
THOMAS HOBBES & NATURAL LAW THEORY (By-Sakshi Pranav Mehta)
Authors: Sakshi Pranav Mehta
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/30
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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