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Thomas Hobbes and the Contractarian Theory of Law

Published online by Cambridge University Press:  01 January 2020

David Gauthier
David Gauthier*
Affiliation:
University of Pittsburgh, Pittsburgh, PA15260, U.S.A.
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Extract

The revival of interest in contractarian theories of morals and politics may encourage us to enquire into the prospects for a contractarian theory of law. Such a theory would be normative, aiming, not at the best explanation or justification of our actual legal practices and institutions, but rather at a rational reconstruction of those practices and institutions from the perspective of agreement among maximizing individuals. It would offer a secular and instrumental rationale for law that requires no dubious assumptions about the objectivity of values or the existence of moral order in the universe. Of course, such a reconstruction might fail, leading to a skeptical conclusion. Rational individuals, in a position to decide on their terms of interaction, might reject any structure that we should recognize as a legal framework. But this must seem unlikely. We may compare law with morality, recognizing that both have arisen in a framework of teleological and theological understandings that are themselves no longer plausible to us, without supposing that either must therefore be wanting from the perspective of rational agreement.

Type
Research Article
Information
Canadian Journal of Philosophy Supplementary Volume , Volume 16: Canadian Philosophers — Celebrating Twenty Years of the Canadian Journal of Philosophy , 1990 , pp. 5 - 34
Copyright
Copyright © The Authors 1990

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References

1 References to the English translation of De Cive (i.e., Philosophical Rudiments Concerning Government and Society, abbreviated DC.) are to chapter and paragraph. References to Leviathan (abbreviated L.) are to chapter, and to pagination in the original edition, which may be found in the Penguin Classics edition of Leviathan, edited by C. B. Macpherson. References to A Dialogue between a Philosopher and a Student of the Common Laws of England are to pagination in the original edition, which may be found in the University of Chicago Press edition, edited by Joseph Cropsey. References to Hobbes's debate with Bishop Bramhall are to pagination in vol. V of the English Works edited by Sir William Molesworth.