Thomas Hobbes: Jurisprudence at the Crossroads

THOMAS HOBBES: JURISPRUDENCE AT THE CROSSROADS GEORGE L. MassE BEFORE the dawn of the seventeenth century, English political thought and the Common Law of the land were closely integrat_ed, with the result that political theory and legal practice were inte~dependent. No do~ bt this fact was due largely to the challenge of the Roman law.1 Englishmen had been forced to produce a "Staatsrechtssystem" in contradistinction to the Roman legal system that prevailed abroad. "Our Law ... is called of us the Common Law--:as ye would say Jus Civile," wrote Sir Thomas Smith in the reign of Queen Elizabeth, with an eye on the neighbouring people of France. It was the Common Law which protected the people's ri_ghts and thus ensured the freedom of Englishmen, while the French people appeared to be at the mercy of an absolute monarch supported by the Roman law.2 Thus any description of the commonwealth of England in Elizabeth's time had. necessarily to includ~ a description of the Common Law as its distinguishing feature. Towards the beginni_ng of the seventeenth century, a change began to take .place in the realm of English politic~! thought, for the Common Law and political theory began to·' part company. The former increasingly became the domain of legal specialists, and the latter was adopted by "speculators" and political theorists. Theory and legal practice eventually became separated, and in England" remained so through the eighteenth century.a' Thomas Hobbes stands at the crossroads of this development. His criticism of the Common Law is significant of the growing divorce between legal practice and political thought. The two works which deal most specifically with this probl~m are the Behemoth and ~he Dialogue of the Common Law. They are from our paint of view companion pieces, for in the B~he.mo[h Hobbes demonstrates the break;-do"wn of the Common Law in practice, whilst in the Dialogue he shows the impossibility of fitting the Common Law into a coherent theory of politics. Thus, he goes so far as to reject the Common Law both in p~litic.al theory and as a practical device for cementing the English commonwealth.4 The significance IS IJulius Hatschek, Englisches Staatsrecht (Tuebingen, 1905), I, 14. 2Sir Thomas Smith, De Republica Anglorum (Cambridge, 1906), 70, 71. 3"Seit beginn des siebzehnten Jahrhunderts ist die Trennung des Rechtes von jeder rechtlichen Betrachtung des Staates entgueltig volzogen" (Hatschek, Englisches. Staat.rrecht , I, 14). •Comparatively little attention has been paid to these two works, especially to the Dialogue. Leo Strauss, in The Political Philosophy of Hobbes (Oxford, 1936), is for the most part concerned withthe purely philosophical and abstract aspec.ts ofHob bes'political thought. M. Oakshott, in his article in Scrutiny, IV, 1935,263-77,isalsoprimarilyconcernedwiththe basis of Hobbes' philosophy as such. K. Lamprecht, in "Hobbes and Hobbism" (American Political Science Review, XXXIV, 1940, 31 - 53), gives a valuable discussion of Hobbes' relation to the laws of reason on a more abstract level. Chi Yung Hoe, in The Origin of 346 · THOMAS HOBBES: JURISPRUDENCE AT THE CROSSROADS 347 clear: for Hobbes political philosophy and jurisprudence had parted company, the one to be based on abstract speculation, the other on legal fact. Hobbes> in the Leviath~n (1651), by his rigid distinction between l~wyers and write.rs on politics, shows that he had been aware of this fundamental difference even before he wrote the Dialogue and the Behemoth.·5 The essence of Hobbes, legal thought was:, in the wor9.s of another writer, "to make reason ·the measure of all just Laws."g It is -important to not~ that he was here in tun~ with most of the legal writing of his day. One pamphleteer wanted "to reduce the Law to a few the.ses which. being emanations and grand maxims of reason, govern and resolve the rest and serve as clue through the labyrinth."7 The concept of reason in this as in ot.her contemporary legal writings is incapable of one clear definition. Yet the difference between the concept as held by Hobbes and as implicit in the position ofthe Common Lawyers is demonstrative of the schism which had grown between political...