Thomas Hobbes whose theory of law was a new combination of ideas from both the
natural-law and command-theory traditions, was one of the most important legal
theorists of the early modern era. Additionally, he made some of the early
critiques of the common-law doctrine, which would later undergo substantial
development by thinkers in the 18th century. According to Hobbes, the law is a
sovereign's main tool for achieving its goals, which are primarily peace and the
personal security of all its subjects.
He established the concept that a
government efficiently governed by law is the sole safeguard against anarchy or,
as he memorably described it, "a war of all against all" while working
throughout and after the English Civil Wars (1642-51). He was born in Malmesbury,
Hobbes's theory of law:
This includes an explanation of the characteristics
that law must have in order to fulfill its purpose. Hobbes is often regarded as
the father of legal positivism, which has dominated legal philosophy since the
17th century. The key tenets of legal positivism are that legislation is
fundamentally a part of social truth and that it has, at most, a contingent
relationship with moral standards. Many behaviors that are prohibited by law can
nonetheless be moral (or immoral).
Insofar as Hobbes held this opinion, it was
because he supported the command theory of law. Using this theory he declared in
his most famous work, Leviathan (1651), that "law in general, is not counsel,
but command" and that civil (i.e., positive) laws are "those rules which the
commonwealth hath commanded...by word, writing, or other sufficient sign of the
will" these actions are to be performed or not performed. Hobbes gave special
attention to the necessity that laws be adequately public and understandable by
common people since laws are "signs of the will" of the sovereign.
Nature of state- According to Hobbes, anarchy in which the strong govern the
weak is the natural state of humanity. The majority of people's lives, he
claimed, are "alone, poor, filthy, brutish, and brief." So, our sole intrinsic
right is the right to self-preservation. Hobbes suggested that in order to get
rid of this underlying worry, people or communities should "contract" with a
protector who would function as their sovereign. Under this social agreement,
individual rights are surrendered, but the protector's rights are not
vulnerable. He disagreed with the concept of divine right, nevertheless.
fundamental defense was that any guardian only existed because their people gave
them permission to do so. Leviathan convincingly argues that the best method to
advance social harmony and public peace is through the establishment of a
commonwealth through a social agreement. A sovereign power is given complete
ability to support national defense and oversees maintaining national security
in Hobbes' ideal commonwealth.
Hobbes' philosophy- Hobbes' main critique of common-law theory was that it
could, by its very nature, fall short of providing authoritative and conclusive
views on what its assumed subjects ought to do because the community's
"immemorial customs," which are intended to serve as the foundation of law, are
not always obvious and may even be highly controversial or disputed. Hobbes
maintained that the law would once more fail to control the behavior of those to
whom it applied if judges and attorneys were compelled to serve as a mediator
between the sovereign and the subject.
He denied Sir Edward Coke's assertion
that learning the law needed "long study and experience" and "artificial
reason." He made joke of the fact that after about two months of study, the
average person would be able to navigate the legal system without seeking legal
Hobbes' theory had undeniably positivist components, but he also drew
inspiration from the natural-law tradition when he proposed a crucial link
between natural and civil law (i.e., between morality and positive law). Natural
law and civil law, according to him, "contain each other and are of equal
extent." Hobbes believed that there were modest but actual moral boundaries to
what the sovereign may lawfully require of its people.
What Hobbes meant by that
remark has been a matter of academic discussion ever since. Hobbes believed that
the natural rule of self-preservation was the fundamental goal of government,
therefore a hypothetical law that, obliged individuals to take actions that
resulted in their own deaths would not be a genuine positive law. Thus, Hobbes
attempted to combine the natural-law and command traditions, albeit some
academics believe he was not that successful.
Thomas Hobbes and Indian Judiciary- The English philosopher, has had a
significant influence on political and legal thought worldwide, including in
India. While it is difficult to quantify his direct influence on the Indian
judiciary, his ideas have been referenced and invoked in various legal
judgments, particularly in discussions on governance, constitutional principles,
Few of them are:
P. Rathinam v. Union of India, (1994) 3 SCC 394
In this case, the petitioner challenged the validity of Section 309 on the
grounds that it violated the fundamental right to life and personal liberty
guaranteed under Article 21 of the Indian Constitution. The petitioner argued
that the provision criminalizing attempted suicide was arbitrary and
The Supreme Court, in its judgment on May 25, 1994, held that Section 309 of the
IPC was unconstitutional. The court ruled that the right to life includes the
right to live with dignity, and the provision criminalizing suicide violated
that right. The court emphasized that a person attempting to end their own life
needed sympathy, understanding, and support rather than punishment.
The supreme court reasoned that the protection of society is the basic reason of
treating some acts as crime. Indeed, it is one of the aims of punishment. Where
there is no feeling of security, there is no true freedom. The Court referred to
Hobbes in Leviathan, which is:
"There is no place for industry, because the fruit thereof is uncertain; and
consequently no culture of the earth; no navigation nor use of the commodities
that may be imported by sea; no commodious building; no instrument of moving and
removing such things as require much forces; no knowledge of the face of the
earth; no account of time; no arts, no letters; no society; and which is worst
of all continual fear and danger of violent death; and the life of a solitary,
poor, nasty, brutish and short."
Common Cause v. Union of India, (2018) 5 SCC 1
In this case, the petitioners sought the recognition of the right to die with
dignity and the legalization of passive euthanasia for terminally ill patients
who were in a persistent vegetative state (PVS) or irreversible coma. They
argued that forcing such patients to continue living in such conditions violated
their fundamental rights.
The Supreme Court, in its judgment on March 9, 2018, recognized the right to die
with dignity as a fundamental right inherent in the right to life and personal
liberty under Article 21 of the Indian Constitution. The court laid down
guidelines and safeguards for the implementation of passive euthanasia, which
involved the withdrawal of life support or medical treatment for patients who
were terminally ill or in a PVS with no scope of recovery.
In this case court referred to Ethical egoism propounded by Thomas Hobbes in
Leviathan which operates from the general rule that if any action increases my
own good, then it is right. The court reasoned that ethical egoism in the
context of euthanasia would mean that if a person wants or does not want to end
his/her life using euthanasia. The presumption is that this desire stems from a
personal interest and is therefore considered an ethical choice. The global
perspective is gradually transitioning from prioritizing the sanctity of life to
emphasizing the quality of life that is maintained and protected.
Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547
In this case, Nandini Sundar, along with other activists, filed a petition
before the Supreme Court of India alleging human rights abuses by the state
government and security forces in relation to the anti-Maoist operations in
Chhattisgarh. The petitioners claimed that the state government was supporting
and arming vigilante groups known as Salwa Judum, which were accused of
committing violence against local communities.
The Supreme Court, in its judgment on July 5, 2011, ruled that the deployment of
tribal youths as Special Police Officers (SPOs) under the Salwa Judum was
unconstitutional and violated the rights of the local tribal population. The
court ordered the disbanding of the Salwa Judum and directed the state
government to take appropriate measures to restore peace, security, and human
rights in the affected areas.
The Supreme Court cited Thomas Hobbes: "a fear of lawlessness that is encoded
in our collective conscience, we seek an order". The court reasoned that the
said order comes with the price of dehumanization, of manifest injustices of all
forms perpetrated against the weak, the poor and the deprived, people revolt.
Likewise, Hobbesian philosophy has influenced India. The Indian judiciary in
order to explore the balance between individuals right and state authority has
used Hobbesian concepts to interpret and apply constitutional provisions. Few of
the many clear-cut examples are case laws mentioned above.
- Common Cause v. Union of India, (2018) 5 SCC 1
- Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547
- Thomas Hobbes, Leviathan (Richard Tuck ed., Cambridge Univ. Press 1996)
- P. Rathinam v. Union of India, (1994) 3 SCC 394
- Brian Leiter & Michael Sevel, philosophy of law, Britannica, https://www.britannica.com/topic/philosophy-of-law/additional-info#contributors
- Thomas Hobbes, Leviathan (Richard Tuck ed., Cambridge Univ. Press 1996)