THEORIES ON LEGAL PHILOSOPHY

Selected Readings

1. THOMAS HOBBES (1588-1679) – English Philosopher

- 91yrs. Old died
- Founder of Modern Political Philosophy, Jurisprudence and Social Contract theory

♥ 1642-1651 – wrote Absolute Sovereign and Social Contract Theory

SOVEREIGN – enforce the laws to secure a peaceful society, making life, liberty, and
property possible.
AGREEMENT → Social Contract
He believed – GOVERNMENT headed by a KING was the best form that the SOVEREIGN
could take.

► in order to escape the STATE OF NATURE is to create SOCIAL CONTRACT.

► the problem of Social and Political Order.

STATE OF NATURE = grounds in politics

- the individual’s desire to preserve his life and his goods.
- An existence where each man lives for himself.

Hence, HUMANS are always in the state of war – (war of all against all).

CONTRIBUTION:
- Unalienable rights
- Social compact
- Limited government
- Elements of Law
- Natural Law – Individual
- Politics

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● Government – self-interested consent of citizens.
● Natural Rights – use his own power, as he will himself, for the preservation of his own Nature
– his own life, his own liberty.
LAW OF NATURE;
1. Peace
2. Lay down one’s right
3. Keeping the covenants

● He posits the idea - SAFETY OF THE PEOPLE IS THE SUPREME LAW.

● LAW – is the command of the SOVEREIGN.

● Freedom/Liberty of the people → consist in what is not prohibited by law.

► COMMONWEALTH → State/Sovereign – people owe absolute obedience

– for peace and security.
► STATE OF NATURE → is in danger when there is no strong State or Sovereign.
- When man’s egoism reigns – there would be chaos and disorder.
- Man should enter into a SOCIAL CONTRACT – must agree to a strong central
government.
Thus, man gives up his freedom and right of rebellion to have peace and defense.

SOVEREIGN → ABSOLUTE → GOVERNMENT

↓→ Monarchy, Democracy, One Man

HOBBES’ WORK:
1. Only SOVEREIGN can make law (sole Legislator)
2. Sovereign is not subject to law.
3. Customary laws – are laws because of the will of the SOVEREIGN signified by his
silence.
- Length of time (Silence is sometimes an argument of consent).
4. Natural laws – equity, justice, gratitude, moral virtues are not properly laws – through
they become part of civil law when promulgated by the Sovereign.

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 5. Law can never be against Reason.

- Intention of the Legislator must prevail.

- REASON = must be interpreted that of the COMMONWEALTH his command that
make a law.
6. Law – being a command must be manifested by voice, written or sufficient argument of
the same.

Exception:
a. Natural Fools
b. Children
c. Madmen
- There is no LAW for them.

HOBBES differentiates:
- Civil – written laws
- Natural – unwritten laws

Finally, HUMAN WILL – originates LAW (Hobbes).

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2. JOHN LOCKE (1632-1704)

● Laws – are established to protect people’s properties.

In order to preserve the PROPERTY – the government/civil society has to establish.

Hence, LEGISLATIVE POWER – Commonwealth is a must.
↓→ supreme power; sacred unalterable

► STATE OF NATURE = every man is EQUAL. It has equal rights.

► Foundation of OBLIGATION – is the MUTUAL LOVE AMONG MEN.

Locke’s argues the idea of HOBBES regarding the absolute theory of government.
↔ His argument: law loses its legitimacy without the CONSENT of the people.

♥ LAW – necessitates the CONSENT of the SOCIETY.

- For consent is understood as HUMAN WILL.

● AUTHORITY – received by the society. It is the society who gives authority.

LAGISLATIVE - FORCE and OBLIGATION of law.
- It is the public who chose and appointed.
John Locke said: ABSENCE of such CONSENT from the people
– there is no true law or government.

A Legitimate government – must have the CONSENT of the governed. If a government loses its
legitimacy it can be overthrown.

Locke posits the idea: GOVERNMENT is a TRUST. The ruler who fails to secure the
public good forfeits this trust. His authority is conditional and never
ABSOLUTE.

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CONTRIBUTION:
1. Positive laws – common consent (right or wrong) = standard. Decide all controversies.
2. Law – binding in the application to particular cases.
3. Everyone is judge and executioner of the law.
4. Victims of injustice seek redress by force to make good their injustice.

For LOCKE – SOVEREIGNTY = resides in the PEOPLE.

4. KARL MARX (May 5, 1818-March 14, 1883)

- 64yrs old died (ideology of not having a State – he died STATELESS).
- German-born philosopher, economist, political theorist, sociologist, historian,
journalist and revolutionary socialist (studied law).
- Consider as FATHER OF COMMUNISM

Work:
Communist Manifesto = Das Kapital
- Revolution of a class struggle
- A proposal to a CLASSLESS society.
● Marx was expelled from Germany in 1849 and moved to London.
● Marx criticized that human societies develop through class conflict.
a. Ruling class (Bourgeoisie) – controlling class of production.
b. Working class (proletariat) – selling their labor power in return for wages.
↔ There is a class antagonism under CAPITALISM.

► Karl Marx solution is to have a CLASS CONSCIOUSNESS. He posits the idea that the
WORKING class/proletarian revolutionary action is a must to topple CAPITALISM.
► He is one of the most influential figures in human history.

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● 20th century – progressed SOCIALIST thought, political movements, revolutionary
government
1. Soviet Union/Russia
2. People’s Republic of China (Maoism)

INFLUENCE:
- French Socialist thought
- Historical Materialism – supremacy of matter over idea.
- Critical Method – Marx was the first to use this method. He attempted to criticize
and separate key findings from speculative thoughts which means ideological biases
to dialectical method.
1844 – working class in England
- Modern working class is a form of progressive force revolution.

HUMAN NATURE = not as human as such (species-being)

but each human/humanity as a WHOLE.
- Formed by the totality of SOCIAL RELATIONS.
- SPECIES-BEING → is determined in a specific social and historical formation.

For Karl Marx – CAPITALISM is dangerous.