Turtles' Lair

Historical Background:

After the incorporating union of 1707 and the battle of Culloden moor, Scottish philosophers formed a new highly influential middle class in the United Kingdom which decided the popular thought of the following centuries. In part a reaction to the mentioned events, the Scottish enlightenment philosophers set out to rethink social cohesion and what makes a society—and as a base for two opposing modes of thought stood Hobbes and Pufendorf. Hobbes broke the traditional view of Natural Law while Pufendorf defended Natural Law. In the end, Hobbes successfully influenced the debate of the 18th century and informed the following centuries in Europe.

Traditional Approach to the Concept of Natural Law:

The idea that morality is a fixed natural law, like gravity, and the same standards of morality are shared by all societies across the globe.

"There are certain laws which are not written. These are the laws which are universally received throughout the world, but nevertheless men did not make them, for all men could not assemble themselves together in any one place, neither could they all speak the same language. They were therefore made by the gods, and no one ever violates with impunity any one law established by the gods." -Socrates

"There is this law which is not written, but born with us; which we have not learned, have not received, have not read, but which we have caught up, have sucked in, yes have wrung out from nature herself; a law—regarding which we have not been instructed, but in accord with which we have been made; to which we have not been trained, but which we are imbued—the law that our life has been placed in jeopardy by any snare, or violence, or weapons either of brigands or of enemies, every possible means of securing safety is morally right." -Cicero

Hobbes's Naturally Anti-Social Man

"Man is by nature a selfish, competitive, utilitarian, hedonistic, diffident, and aggressive creature: man is man's wolf. Human beings are not born fit to live in society, and most of them remain in that condition all their lives, so it is education and not nature that makes men capable of social coexistence. Men do not seek society for its own sake, but for the profit they expect to gain from it, and they do so, not out of love for their fellow men, but for themselves. Nature urges us to conquest and dominion over other men, rather than to harmony and peace, so at the foundation of society we find not solidarity and goodwill, but conflict and competition among men. Man is no 'political animal' as bees and ants are (which is what Aristotle seems to suggest) because the character of human society is not natural, but artificial."

Relationship between "Superior" and "Inferior" laws:

"A superior law, such as the law of equity, allows greater liberty than a subordinate law such as a civil or municipal law, so the latter is more restrictive and imposes more obligations than the former. A man may be obliged to do something by an inferior law that he is not obliged by a superior. Any act permitted by a lower law is also permitted by the superior. It is not lawful to do something that is permitted by a higher law if it is forbidden by a lower; what is forbidden by a higher law cannot be permitted by a lower, and that which is ordained by a higher law cannot be forbidden by the lower. Subordinated laws may restricted the liberty allowed by superior laws, but they can never widen it."

Pufendorf's Definitions of Liberty:

"Liberty is the ability possessed by men to act according to the guidelines of their own judgement."

"Liberty is the Power of our will in virtue of which, within the limits set by law, we may choose among several alternative options and reject the rest."

Hobbes Doctrine on Deliberation and Will:

"External objects are the cause of our ideas, and these in turn are the cause of an internal reaction within ourselves which can be wither of appetite or of rejection. Before taking a course of action, our mind is indecisive, alternating between appetite and aversion, between hope and fear, depending on the good or evil which we expect will be the consequence of each of the options under consideration. As soon as we choose one of the options, we lose the liberty (de-liberation) to opt for any of the rest."

"Will is the last appetite of this sequence, the one that eventually becomes an action."

"To illustrate, imagine a man who, being aboard a vessel threatened by shipwreck, considers the possibility of saving his life by dumping into the sea a heavy cargo of gold of his property."

Pufendorf's Response to Hobbes's Doctrine on Deliberation:

"While we deliberate, we are properly said to be free, and the effects which are to proceed from our actions are, with respect to the freedom, rightly termed Contingent, but when we have once determined which way to act, the connection between our actions and the depending effects is necessary and natural, and consequently capable of demonstration and imputation."

"When we say 'the Will is the Deed,' we must understand that this is meant only of such an act of the will which is united with the utmost endeavor, so that no new operation of the will intervenes between this and the event of the crime, though the success of the action fail."

Where there is no law, there is no liberty:

"They who are truly free are them whose behaviour adheres for the most part to the dictates of right reason. If liberty is understood not as an abstract concept but in its practical sense, it is obvious that we cannot have it, if we disregard the guidance and discipline afforded by the laws of nature and of reason." - Pufendorf

"Law is not a limitation nor a restriction, but a guide that directs the efforts of free and intelligent agents in their quest to achieve their goals. The prescription of the law have no other purpose but the common good of those subject to it. It is an error to believe that the marks and signs at the edge of roads—which are there to prevent travellers from getting lost on their way or falling off a cliff—are some sort of confinements or impediments. The law may be deficient or inadequate, but far from being an obstacle to the liberty of men it is a guarantor of its preservation and a promoter of its widening. To be free is not to be a victim of the violence and oppression of others, and that is impossible in the absence of law."

"Liberty is not simply to do whatever we wish to do, since we cannot be free if anyone can harm us and face no consequences. I am free if, within the limits stated by law, I can order my life as I see fit and I am not subject to someone else's arbitrary will."

-Locke

Charters, Liberties, and Privileges:

(Not laws, but exemptions from the law)

Laws—whether mandates or prohibitions—impose obligations, according to Hobbes, but do not grant permits nor create rights.

Charters, Liberties, and Privileges are free gifts granted by the sovereign: "Laws begin with the words 'I mandate' (jubeo), or 'I command' (injungo), while concessions with the words 'I give' (dedi), or 'I grant' (concessi). Laws establish obligations for the citizenship at large, while grants are addressed to a limited number of men. Titles of private property are nothing but instructions that forbid officers and magistrates the execution if any judgment or action which could infringe such concessions." -Hobbes

Pufendorf agrees that what is proper to the law is not to allow, but to oblige: "We will never find a law so solicitous of our good that is appears to force us to do ourselves a favour. The essence of a privilege is not the imposition of an obligation, so the fact that something is allowed does not mean we have an obligation to do it." -Pufendorf

Legislative Economy:

Hobbes prescribes avoiding the proliferation of laws and restricting the number of words used to put them in writing: "The purpose of the law is not to regulate each and every action of men, but to serve as a guideline to prevent them from inflicting harm to others by recklessness, just as the marks and signs at the edge of the roads serve, not to hinder the transit of travellers, but to prevent them from getting lost along the way. Laws that are not strictly indispensable are not good laws becuse they invariably become a source of corruption." -Hobbes

The modern legal doctrine disagrees with Hobbes's minimalist legislative strategy: "Since in a republican government the defense of the rights of citizens is of paramount importance, no effort is to be spared to have adequate and sufficient legislation. A despotic regime (like the one proposed by Hobbes), by contrast, tends to have few laws, which exposes its subjects to an intolerable degree of legal uncertainty" -Montesquieu

Positivist Hobbes:

• "The Sovereign will never commit injustice" -Hobbes


• "The Law cannot be unjust" -Hobbes


• "For the primitive man, rapine was not only an honest means to make a living, but he who practiced it was admired for his bravery and audacity. This behaviour was not a breach of the law of nature, because the state of nature is a condition bereft of rights" -Hobbes


• "A man can only commit injustice if he, abusing the trust of another man, fails to perform his part of a covenant. An injury—'in-jure,' 'sine-jure,' an act committed 'without right'—can only occur under covenant or statute: in the absence of such condition, harm inflicted upon a person is not an injury but a damage. To illustrate, suppose that an employee disobeys his employer's order to hand over some money to a third party. In this case, the employee has damaged the third party, but the only one he has injured is his employer, with whom he had a prior commitment of obedience." -Hobbes

Natural Rights Doctrine:

Natural rights doctrine—which is not the same as Natural law doctrine—was made known to the world by Pufendorf and Locke, but is as ancient as Aristotle.

"Law and justice are universal values of humanity that take precedence over any contractual agreement or political society." -Aristotle

"Injustice is not a mere breach of a covenant, but everything that is repugnant to the rational and social nature of human beings. Natural reason forbids all violence which is contrary to the peaceful coexistence of men, as well as every behaviour that results in detriment of the rights of others. These rights include private property, self-preservation, physical integrity, and liberty itself. Whoever violates any of these rights, commits injustice." -Grotius

Pufendorf Critique of Hobbes's Doctrine:

"According to Mr. Hobbes, before the institution of civil government there were no such things as private property and marriage, and men could literally do whatever they fancied to do."

"War is not the only alternative to civil society, as Mr. Hobbes assumes: Peace is certainly possible in the state of nature. In the absence of civil society, men can do whatever they deem necessary to preserve their lives, so long as they do not infringe the rights of others."

"Injustice is a violation of rights that do not proceed from any human action, but that have been granted beforehand by nature"

Rights precede the law: "Obligations do not exist before the creation of the law, but our rights belong to us from the day we are born."

The law's sole purpose is to provide redress for those that have been wronged: "The Law of Nature commands that he who has injured another, should offer him satisfaction."

The possession and acknowledgment of rights is a specific feature of human nature: "Brutes indeed by instinct of nature will endeavor to defend and preserve themselves as well as they can, but man alone understands the nature and constitution of peace, for it is he only, that can voluntarily undertake or forbear the performance of any action, which may bring good or harm upon another person, upon a consideration of certain obligations on one side, and certain rights on another."

To be 'human' is to recognise the rights of fellow men. "We do not refrain from inflicting harm to our neighbour because that will redound to our own benefit, but for the simple reason that he is a human being, and hurting him is a crime."

The Right of Private Property precedes the creation of Human Society. "The precept of nature about abstaining from what is another's then first began to exert its force when at length men, by mutual agreement, had marked out and appointed what should belong to others, and what each person should claim as his own. Before this time, it lay concealed in that general percept which enjoins us to stand to our covenants, and not to injure the right of our neighbour. Nor is it any absurdity to affirm, that the obligation we lie under, not to invade the goods of others, is coeval with the human race."