Was Hobbes een rechtspositivist?

Translated title of the contribution: Was Hobbes a legal positivist?

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Abstract

Thomas Hobbes’s view on the relation between law and morals continues
to puzzle his readers. Most scholars believe that Hobbes is the true founder
of legal positivism, a view that seems to go back to Austin’s The province of
jurisprudence determined (1832). Others believe that Hobbes is a representative,
albeit not a typical one, of the natural law tradition.
The author of this article argues that this puzzle can only be solved after two
questions have been addressed. First, Does Hobbes believe that any sovereign
command is a positive law, no matter what the content of that command,
or does he hold that an unjust command is no law? Secondly, If
Hobbes does indeed hold that any command is a positive law, does that
automatically make him a legal positivist?
The thesis of this article is that Hobbes is not a legal positivist for two reasons.
First, there is some evidence that suggests that on Hobbes’s view there
are sovereign commands that cannot be positive laws because they are
‘immoral’. Secondly, even if Hobbes were to hold that any sovereign command
is a positive law, this still would not make him a legal positivist,
because he does not make a clear distinction between positive law and
morals, a distinction that is generally considered to be the characteristic
feature of legal positivism.
Original languageDutch
Pages (from-to)58-83
Number of pages25
JournalNetherlands Journal of Legal Philosophy
Volume2002
Issue number2
Publication statusPublished - 2002
Externally publishedYes

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