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Summary What is the 'Law'?
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Summaries and Notes for all the essay and other questions in the exam scope created with past paper memos for LJUR4814 - Jurisprudence.
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UNIT 1.4WHAT IS THE ‘LAW’?
It is stated: “The question as to the reason for law to be applied in society,
and via what mechanism this should be applied is also an issue that is
linked to the concept of law” (p. 33). In addition it is stated: “Therefore,
the whole question regarding the reason for the establishment of a system
of law which is managed and maintained by a central authority, such as a
government, can differ from person to person, and a person’s religious or
world-view will influence this insight. This indicates the relevance to
philosophy of law regarding theorising on the establishment, structure and
reason of our legal system.” (p. 35) Explain these quotes in the light of the
jurisprudence of Thomas Hobbes [7] or John Locke [7].
• Thomas Hobbes (1588-1679)
o He understood man as not having an inherent inclination
towards exercising malice. Rather, man is largely motivated
by deep seated fear and egoism, satisfying his own passions
and the need to escape harm. (1)
o However, the relationships between individuals are extremely
unstable, and the state of nature quickly lapses into a state of
war of everyone against everyone. (1)
o Individuals exercise their right to self-preservation in an
atmosphere of distrust and anxiety, fearing that others will
deprive them of their interests and the means to secure these
ends. (1)
o According to Hobbes, because of the absence of a body of
laws and an authority or power to enforce them, the state of
nature is devoid of justice. (1)
o For Hobbes, the solution lies in the people renouncing their
natural right to self-defence, and to embrace instead
“convenient articles of the peace”. (1)
o Consequently, the state of war is exited and entrance is made
to a civil society, a civil society that empowers a sovereign
with ultimate, unchallenged authority over its subjects. This
Leviathan or “mortal God”, holds and exercises an
overwhelming and visible “coercive” power that limits
individual passions and establishes an environment in which
people can better “preserve peace and recognize obligations
to one another, to enforce agreements, to move beyond mere
individual enforcement of the right to self-preservation”. (1)
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