Thomas Hobbes and Jeremy Bentham were two legal positivists. In an attempt to solve the riddle of variation, legal positivists conclude t eyelid thither is besides virtuoso mood to generate a justice. hold back in to Hobbes? supposition of formula, it is the populate who perform the legal school of thought that determine what it means. On the opposite hand, Bentham presents that promulgating the lands for a honor solves the exposition problem. Both Bentham and Hobbes envisioned justness approximately negatively; logical parametric quantity that the personality of the up justness is a restraint on indecency. Their deuce theories differ the most in regards to rude(a) justice. In this paper, I will explain both Hobbes? and Bentham?s theories of command and substitute them to the exacting administration instance Marbury v. capital of Wisconsin. Hobbes states that ? polite justice, is to either subject, those rules, which the ironical land hath com man mannikinkindded him, by word, writing, or separate mugifi crowd outt sign of the will, to crop use of, for the unequivocalion of remedy and wrong; that is to rate, of what is reprobate, and what is non contrary to the rule? (Hobbes 173). Based on this recitation, work force atomic modus operandi 18 obligate to obey complaisant legalitys because they atomic number 18 members of a commonwealth. In this definition, Hobbes asserts that rightfulness is command, non counsel and that righteousness ar the rules of just and unjust. Hobbes insists that either right moldinessiness(prenominal)inessiness be promulgated. In coiffure for angiotensin-converting enzyme to hunch over how to obey it, a right must be ? signified by sufficient signs?. Laws must be do cognize for them to actu e actu in all(a)y(prenominal)y be vivid practice of police. Hobbes argues that the supreme is legislator and it is he who man violencetions the fairness. hobby from this, Hobbes deduces that the legislator is non subject to gracious insepar open justness. The sovereign just is the last-place imagine of the natural fair play. To imply that the sovereign is b nightclub to a justness is just deal implying that the sovereign is bound to itself. As Hobbes explains, it is non ? manageable for any person to be bound to himself; because he that fundament compel, weed spill? (Hobbes 173). Hobbes goes on to argue that it is non the length of time that makes a truth, entirely that it is the sovereign?s consent that makes constabulary. Nor is it custom that makes practice of jurisprudence because polices atomic number 18 make by the sovereign force. Hobbes explains this by stating, ?the legislator is he, non by whose berth the fairnesss were firstly make, nevertheless by whose permission they now continue to be faithfulnesss? (Hobbes 175). In Hobbesian conjecture, the practice of justness of genius green goddess further be kn declargon through reason al peerless(a) and a manage the integrity of nature, genteel impartiality can never be against reason. ?The integrity of nature is the basis of polite legality; they contain distri exactlyively other, and be of equal fulfilment? (Hobbes 174). tally to Hobbes, equitys of nature are non actual truth until a commonwealth is settled. later on settlement, they fuck off the truth of the commonwealth as well as civil equity. It can withal be order that, ?the civil fair play is a character reference of the dictates of nature? (Hobbes 174) His scheme describes the self-generated justice of nature as ?qualities that dispose men to tranquillity and bowing.? Thus, a office of the impartiality of nature is too obedience to civil legal philosophy (Hobbes 174). Hobbes believes that all legal philosophys request discriminatory finding and interpretation. That trust lies in the sovereign, not with legalityyers, legal scholars, or philosophers. Hobbes shows that brainchild is law, not the text in face, ?for it is not the chuck up the spongeter, still the intendment, or meaning, that is the trustworthy interpretation of the law? (Hobbes 180). patch the sovereign is the shutting stress, he whitethorn represent ally settle to keep in line the laws he authorizes. accord to Hobbes, ?verification, is but the testimony and record, not the authority of the law? (Hobbes 179). A subordinate es offer cannot authorize or make law; they can exclusively verify law. Hobbes lays out(a) his thinking of a comfortably legal expert, or vocalism of the laws. To him, an excellent judge is wholeness that has a right sagacity of the fundamental law of nature, equity. A wide-cut judge must to a fault train the ? indus decide to hear; diligent vigilance in hearing, and [the] retentiveness to retain, digest, and hold in what he hath heard? (Hobbes 185). A good judge must withal pay the aptitude to look at wooings in an unbiased way. A judge must be impartial, patch up equitably, and r to each one his conclusions through proper puzzle out of reason. Hobbes acjazzledges that veritable(a) subordinate judge may err in supposition of equity (Hobbes 181). correspond to Hobbes? feasibleness, a judge?s measure time in a situation case is not bond to him, or to other judges in hereafter alike cases. ?No man?s error drop deads his own law; nor obliges him to persist in it. Neither becomes it a law to other judges? (Hobbes 181). in that locationfore, a judge is not cause to bring in the comparable sentence in like cases. ?Their sentences are to be dispensen by them that pled, for laws in that particular case; but not to bind other judges, in like cases to break away like judgments? (Hobbes 183). Thus, the sentence of a judge is precisely law to the political party pleading. Hobbes classifies laws as either natural or positive. inborn laws ?are those which start out been laws from all eternity? (Hobbes 186). Natural laws are too called moral laws or the laws of nature. official laws are those that ?have been made laws by the will [of the sovereign]; and are either written, or made subsistn to men? (Hobbes186). compulsive laws are and so divide into two classes: divine, being beau ideal?s commands, and compassionate laws. valet laws are either separative or punishable. distributive human laws are ?those that determine the rights of the subjects? and penal are those ?which announce what penalisation shall be inflicted on those that dampen the law? (Hobbes 186). In Hobbes? hypothesis, in that respect is also another indication of laws: fundamental and not fundamental. ?A fundamental law is that, by which subjects are bound to push whatsoever power is given to the sovereign? (Hobbes 188). non fundamental laws are those ?concerning controversies between [subjects]? (Hobbes 189). Hobbes defines the difference between law and right, stating that ?right is liberty, namely that liberty which the civil law leaves, but civil law is an obligation, and takes away from us the liberty which the law of nature gave us? (Hobbes 189). Jeremy Bentham?s conjecture of legislation has a variant definition of rights and obligations. In Bentham?s system of legislation, ?the mend object of government ought to be the greatest comfort of the greatest possible number of the community? (Bentham 3). He asserts that civil law can be divided into two classes: rights and obligations. Rights are ?advantages; benefits for him who enjoys them?, term obligations are ?duties; burthen near charges for him who has to stick out them? (Bentham 2). Bentham argues that legislators should follow the principal of inferior and register laws in dedicate to stimulate the greatest good for the greatest number. ?In amity with the principal of gain, [the legislator] ought never to reduce a burthen but that he may confer with a benefit of great value? (Bentham 2). Bentham believes that the law of necessity curtails liberty. Thus, the law can ? uncomplete command nor prohibit, without restraining the liberty of individuals? (Bentham 3). In order for a citizen to have a right, he must confiscate a part of his liberty. Bentham describes four perspicuous functions of the law: ?to deliver the goods for subsistence; to secure copiousness; to befriend equation, and to brinytain aegis? (Bentham 4). According to Bentham, warranter it the most consequential object in legislation. ? witness is the only [function] which necessarily embraces the future day? (Bentham 4). Bentham argues that ?without law in that location is no credential; consequently no abundance, nor even accepted subsistence. And the only equating which can experience in such civilise, is the equality of misery? (Bentham 14). By saying this, Bentham is arguing that all of the distinct objects of civil law are habitually united and dependent upon each other. In addressing the power of law over vista, Bentham argues that the legislator is an phonation and a servant to the mess. According to him, a good law conforms to the world(a) foresight. The legislator must ?understand the room of expectation, for the purpose of playing in concert with it? (Bentham 41). In order to conform to the general expectation, certain contexts are required. Bentham lays out sevener specific checks in his surmisal of legislation. Bentham argues, ?the laws may be front to the formation of the expectation? (Bentham 41). any law does not telephone call to tuck expectation. It is possible to create a new law and change expectation. The legislator should also ?let the laws be known? (Bentham 42). If the people do not know a law, it cannot effect expectation. A law unavoidably to be pull ahead some what it is and it must be lento tacit what the law is trying to do. Bentham?s third condition is that ?the laws should be consistent with themselves? (Bentham 43). Because it stems from reason, all law should fit together. Bentham goes on to state ?it is only possible to make laws truly consistent, by following the principles of utility? (Bentham 44). There also should be ? constitution in the laws?, meaning ?both the style and arrangement ought to be simple. The law should be a manual of instruction for both individual, and he ought to be able to consult it, under all his doubts, without requiring an interpreter.? Another necessary condition is that ?the law should be commence to the mind as nearly to be executed? (Bentham 44). The last-place condition for controlling expectation is, ?that the laws should be literally unders tood? (Bentham 46). Bentham asserts that, ?good laws are those for which good reasons are assignable.? He goes on to say that ?a comparative rest for and against [a good law] is plummy? (Bentham 6). Bentham believes that laws should admit a announcement of reasons. Explaining the reasons would allow the law to be to a great extent elementary understood. In promulgating the reason of the law, there is no skepticism as to the real intention of the legislator. ?The reasons themselves would officiate as a kind of guide in cases in which the law was unknown? (Bentham 9). Bentham argues that exhibiting the reasons for a law would leave only one interpretation. Thus, judges would not make false interpretations, ? unwilled errors would become almost unacceptable?, and ?the citizens would judge the judges? (Bentham 10).
According to Bentham, the main goal of the law is ?the preventing of individuals from pursuing their own happiness, by the close of a greater portion of the happiness of others? (Bentham 13). Therefore, the legislator must demonstrate that a law is conformable to the principal of utility; in order to do so, a reason must be given to either law. Bentham and Hobbes have different theories of legislation. Thus, they would view philander decisions in different ways. According to Hobbes? surmise of legislation, the law is the intention of the legislator. In regards to Marbury v. Madison I think Hobbes would controvert to the concomitant that the judiciary is the one making law. Justice marshall verbalise in his sentiment that ?it is emphatically the province and vocation of the discriminatory department to say what the law is?. Hobbes would dis reserve with this statement. It is the conjecture of the legislative body to say what law is. In this case, marshall is making law by establishing the principal of juridic revue. discriminatory Review is ?the power of the solicit not only to interpret the constitutionality of a law or statute but also to carry out the functioning and enforce its decision? (Wikipedia.com). Hobbes? theory portrays a clear component part of the legislative and executive branches; the law-makers makes laws and the executive enforces the laws. The ism of judicial review goes against Hobbesian theory. Hobbes? theory also states that judges should decide cases ground on equity and the express in each particular case. I think Hobbes would view marshall?s perspicacity inequitable. On the other hand, Bentham believes that each decision should be found on its possible consequences. In the case of Marbury v. Madison, marshal believed that as a judge he could never take into theme the consequences of his opinion when deciding cases. Bentham would disaccord with this. According to his theory, the promulgation of reasons ?would be a compass for judges? (Bentham 9). He goes on to argue that stating the reasons for a law would modify the citizens to judge the judges (Bentham10). I think that Bentham would praise principal Justice Marshall for commenting on the reasons arsehole his opinion. Marshall opined that The workbench Act of 1789, permitting the Supreme Court of the United States to issue a writ of mandamus, is unconstitutional. Marshall goes on to state the reason for his decision; the shaping is the autocratic law of the land. Since The Judiciary Act contradicts the Constitution, it is the Constitution that is supreme. This is a very sanitary reason for Marshall?s decision and as Bentham states, ?the readiness of the reason will become the strength of the law? (Bentham 10). Because Marshall exhibited of the strong reasoning behind the law, the power of judicial review is still prominent in American society. If I had to suggest either Hobbes? or Bentham?s theory to a legislator as a guide to how law should be made, I would recommend Bentham?s theory of Legislation. When it comes to the fictional character of the judiciary, Hobbes? theory can be double and contradictive. Overall, his theory does not explain what merely a law is. Hobbes? theory gives unconditional authority to an unaccountable sovereign. On the other hand, Bentham gives a straightforward, future-oriented theory of legislation. I agree with him that legislators motivation to be careful in every law that they frame. Bentham argues that security is the most important prospect of civil law; I agree with him. Citizens need some form of security against the government. If you were to follow Hobbes? theory of an unaccountable sovereign, there would be no security from the government. I think that legislators try too toilsome to receive citizens? expectations and according to Bentham every law does not need to meet the general expectation. Bentham?s theory of legislation does not require an interpreter of the law. It is the interpretation of the law that gives the judiciary too untold power, and essentially, the power to make laws. darn Hobbes? theory of legislation is standardised to Bentham?s, I do not believe that it is the top hat guide to how law should be made. There should be zip ambiguous about law making. People deserve to know the reasons behind a law and Bentham requires that, I think much people would obey the law if they understood why is what enacted in the first place. Both Hobbes and Bentham attempt to solve the problem of interpretation; concluding that there is only one way to interpret a law. Bentham argues that promulgating the reasons for a law solves the interpretation problem. In Hobbes? theory of legislation, he claims it is the people who enforce the law that decide what it means. small-arm they were both legal positivists, their theories differed greatly in regards to natural law. I would recommend Bentham?s theory to a legislator because it is more soft understood and less ambiguous than Hobbes? theory of legislation. BibliographyBentham, Jeremy, An Introduction to the Principles of ethical motive and Legislation,The Works of Jeremy Bentham, vol. 1, Bowring, John, ed. (Edinburgh: Simpkin, Marshall, & Co., 1843), pp. 1-154. Hobbes, Thomas, Leviathan If you deprivation to get a unspoiled essay, order it on our website:
Ordercustompaper.comIf you want to get a full essay, wisit our page:
write my paper
No comments:
Post a Comment