The problems themselves are not integrated into a system. Incompatible fragments of theory stand side by side because Montesquieu had not the philosophical power of constructing a system, and the application of his theory to large masses of historical materials is irrelevant because he did not have the power of penetrating them critically.
The Esprit des Lois is in its theoretical as well as in its empirical aspects the work of a dilettante, but of a dilettante with enthusiasm, with ambition, with a great horizon, and with a flair for the essentials. Montesquieu was clear about the problem that faced him. The center of politics is man, and what his time needed was a science of man. The anthropological question is introduced as the central systematic topic. However, as soon as the execution of the plan commences, we run into the difficulties of a technically incompetent terminology slurring over the problems. Space does not permit a step-by-step disentangling of the messy book I, On Laws in General.
I must refer the reader to the original and shall give only the substance of the argument.
Elements of Law, Natural and Political by Thomas Hobbes (ebook)
Man belongs structurally to several realms: he is a physical object, an animal, he has intellect, a moral personality, and a spiritual personality capable of religious experiences. This structure determines his relations to his environment in the widest sense of the word, comprising nature, fellowmen, and God. The relations between man and his environment are governed by rules that have been fixed by the Creator and that are accessible to human knowledge. As man is fallible, weak, and influenced by passions, he is liable to depart from some of these rules. Thus far the exposition of the desirable political and civil laws might result in another natural law construction.
But at this point the new factor of the people is introduced. The people is conceived on the same structural lines as man, from its physique through its temperament and moeurs to its religion. Within the framework of general human nature, nations differ. They are not simply replicas of one another, but have each their individuality. It is the art of the legislator to adapt the political and civil laws to the circumstances of the case. The whole of variations that the general law undergoes in the process of its adaptation to the structural elements of an individual people is what Montesquieu calls the esprit of a legal order 1.
The structural features that have a bearing on the esprit of the laws fall into two classes. A people may be organized as a republic, a monarchy, or a despoty. The question of which should be preferred is determined by the size of a people. The organization of the Esprit des Lois follows on the whole this program. The frequent charges that the work is for the larger part disorganized are not justified. It is organized about as well as it can be considering that the theoretical problems are skipped with serene insouciance.
In any case, the way in which the ancient texts were read would reveal the main problems of the modern political philosophy. Against it, and its defence of historicism, the philosopher of German origin will propose to understand the thinkers as they would understand themselves. Nevertheless, most of the interpretations done by Strauss, Hobbes works included, produce perplexity and bewilderment.
His unusual and heterodox way of understanding the thinkers -from an analysis solely based in what is written in their texts- the proposal to return to a classical political philosophy and his diatribe against Modernity, make the reader wonder whether Strauss himself had not used the esoteric writing technique. That being the case, the truths he exposed could have only been known to a select group of initiated.
The Elements of Law, Natural and Politic
Otherwise, his theoretic legacy shows a number of incoherencies, some unyielding thesis and a deep obscurity in its arguments. Every study on Hobbes should take, thus, as starting point, a choice between two alternatives which Strauss refers to as naturalistic interpretation and humanist interpretation.
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By means of the first one, his political philosophy is seen closely connected to the postulates he develops in other works and that relate to the new natural sciences, whilst by following the second one, only his works specifically dedicated to political matters would be taken into consideration.
Strauss does not clarify which interpretation he prefers or should be the most adequate; however, the rationality Hobbes introduces in the reflection on politics, will be seen as a sign of decadence of the political philosophy. The decline of this knowledge is nothing else, to Strauss, than the progress of Modernity, as both processes would result simultaneous and inseparables. Achieving political unity would give, according to Bobbio, the defining feature to a type of power organisation that is the Modern State.
Such is the political theory that seeks to establish the basis of legitimacy, departing from rational arguments -that are beyond religious or moral beliefs-, individualistic and of a particular vision on human nature. Unlike other contemporary interpretations, Bobbio sustained that Hobbes stood out as political philosopher, in spite of having created a system of philosophical thought that included the study of the body, the man and that would lead to the study of politics.
In this sense, only the last part would have been developed in a completely and integral manner, thanks to a group of works amongst which particular attention, according to Bobbio, should be drawn to the transcendence of the De Cive. The Italian professor always highlighted the virtues of this work as he considered it the most organic and homogenous of all three.
He thought that this work has benefited from the fact of having been conceived as part of an integral philosophical system, which awarded it the systematisation, concision and clarity the other two works lack. If Leviathan better reveals the greatness and genius of Hobbes, De Cive shows the sharpness of his intelligence and his passion for logical precision; since it had been conceived for the European erudite, rather than for his fellow citizens.
In his effort of reconstructing the systems of classical thought, Bobbio attested to the existence of means of communication between political theorists from a series of preoccupations and common interests albeit acknowledging the historical distances that separate them.
The analysis of the most important concepts of the political philosophy constituted, for the Italian professor, not only an useful tool to face actual theoretical problems but also a mean to save the classics from falling into oblivion or the irrelevance they are usually condemned to when regarded from an excessively historicist point of view. From a different angle to Leo Strauss, who tried to establish a tradition of classical thought in a strict sense, Bobbio limited himself to verify the relevance given to a number of authors that could have been considered classics: Plato, Aristotle, Machiavelli, Hobbes, Locke, Montesquieu, Rousseau, Kant and Hegel.
On the other hand, the connexion that would exist between the main issues of political consideration -the so-called recurring themes- could serve as basis for the elaboration of a general theory. The originality of the Hobbesian political philosophy is indicated by Bobbio from the contrast of two models which are, on the one side, the model proposed by Aristotle in his Politics- that would remain until the XVII century- and, on the other, the one proposed by the rationalist tradition of natural law, starting with Hugo Grotius but in which coexists a series of authors and theories with important differences.
The common point of these philosophers will be outlined by the use, for the first time, of a rational method to explore moral, law and politics, as if they were the object of study of a demonstrative science. To accomplish this objective, individuals will have to consent to resign to a part of the freedom and equality they enjoy in the state of nature, in order to be able to abandon it through the creation of an artificial being: the State. A thought that always gave room to doubt —as the best remedy to dogmatisms and fundamentalisms- and that tried to follow a scientific objectivity.
Such struggle would translate into pursue the effective truth of the thing before pursuing what we imagine of it, quoting his own words. Amongst these, a common concern can be noticed in presenting the problems through pairs of opposite concepts, such as: state of nature-civil state, plurality-unity, anarchy-order, war-peace. It is not about the individual ownership nor about the understanding of the individual as a mere rational elector, due to the fact that behind these labels one can perceive the presence of an ideology based on free competition and negotiation between individuals -which conform the essence of the bonds created in a society under a market economy- or an utilitarian vision that, to Bobbio, would result reductionist.
The individualism defended by this author is ethic and democratic, because it gathers elements pertaining to the Kantian philosophy —such as the notion of human dignity- and combines them with certain ideas that belong to the Hobbesian philosophy. In this respect, he recognised the artificial nature of the State and the Law as means for the instauration of norms that would ensure social peace while, at the same time, he considered these should respect the autonomy of all individuals as dignified, equals and free beings. An interpretation coherent with the defence of democracy, pluralism, liberty and equality; values with which Bobbio always felt himself identified with.
A good example of it would be his handling of the relationship between Hobbes and legal positivism. In the Preface to his work Thomas Hobbes, Bobbio sustains that the Malmesbury thinker is situated closer to the legal positivism than to the natural law. Based on this assertion, he develops a thesis where the English philosopher is an author that can be classified within the natural law theory, but at the same time his contributions are crucial for the development of the legal positivism.
What at first sight might appear to be a contradiction, given the antithetic character that exists between both streams, Bobbio explains it in terms of a paradox. It reunites, on one side, the Hobbesian conceptions of law and State as clear precedents to the decimononic legal positivism and, on the other side, the basis of a philosophy that has become a typical expression of natural law orientation.
The first of these is the formalism and the second, the imperativism.
In the work of the English philosopher it would then be possible to perceive a notion of the ethical positivism, in line with the directives suggested by Bobbio to analyse the legal positivism as ideology. In the specific case of Hobbes, such ethical positivism finds its justification in a conventionalist conception of justice. Under this denomination, Bobbio refers to an idea of justice which finds its roots in what has been established by the individuals themselves.
Hobbes had established the principle that the positive law is the one in charge of determining its own content, without deriving it from the law of nature.
According to Bobbio, this kind of conception is the same that will be sustained, in the XX century, by the most important theorist of the contemporary legal positivism: Hans Kelsen. Nonetheless, Bobbio himself admitted that we should be careful when identifying the Hobbesian theory to a strictly positivistic theory given that natural laws continued to play an important role. In this sense, a clear difference can be observed between the solutions proposed by Hobbes and those suggested by positivists to the problems of gaps in the legal system.
The positivism suggests that the legal vacuum can be overcome by the application of two methods: analogy or to resource to the general principles of Law, as this is conceived as a self-sufficient order. For Hobbes, these would be unthinkable solutions providing that the legal system is legitimated by a pre-existing natural order.
However, his theory would be, according to Bobbio, the most serious attempt to reduce the Law to a positive law, in a cultural-historic context where no one would dare to question the existence or validity of the natural law. In other words, the basis of the State and its legislative faculties is the natural law, but once it has indicated the path to the consecution of peace, everything is put in the hands of the force of civil or positive laws. In sum, the natural law would establish that to achieve the aim she had prescribed, individuals must obey positive laws.
It would be a declaration of impotence from the side of the natural laws against the strength of positive laws.
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