In his Leviathan, Thomas Hobbes outlined his views on law, the individual and the state. It is the first and foremost pieces on social contract theory. Hobbes explains the emergence of a sovereign, as “an embodiment of people’s individual and collective will to live in conditions of security, peace and some minimal prosperity” .
He takes off with a hypothetical scenario that he refers to as “the state of nature”, wherein he analyzes the condition of individuals before the emergence of states. In such a state society is deemed to be chaotic and all men are considered equal and all have a right to act so as to survive , In such a state of nature he refers to human life as being “nasty, ...view middle of the document...
This is the right to do whatever one sincerely judges needful for one's preservation; yet because it is at least possible that virtually anything might be judged necessary for one's preservation, this theoretically limited right of nature becomes in practice an unlimited right to potentially anything, or, as Hobbes puts it, a right “to all things”. Hobbes further assumes as a principle of practical rationality, that people should adopt what they see to be the necessary means to their most important ends . With regards to Hobbes conception of coercion, he believes coercion plays an important role in state’s function. Hobbes asserted “covenants extorted by fear are valid” , he seems to agree with the idea that acting from fear does not undercut the voluntariness of one's acts. Hobbes further held that coercion is necessary for both the justification of and function of the state and in order to achieve justice a state must have coercive powers. Further he adds, that it is a law of nature that we seek the protection of the Leviathan's coercive powers in order to exit the perilous conditions of the state of nature .
To put it simply Hobbes can be clearly understood as putting forth three stages- the first being the state of nature, the second wherein the state of nature is being analyzed and the final where an argument is offered to explain the normative significance of the results of the analysis in stage two .
Normativity of law and its relationship with coercion through the lens of Kelsen, Hart and Raz
Hart and Raz have been able to give the most satisfactory account of the normativity of law. Hart’s theory has been drawn upon by Hobbes concept of the Leviathan and the state of nature. Raz’s argument is based on the law’s claim to authority over the society it purports to govern. For him the question about normativity of law is the question of what sense to give the blindness of law, its duty imposing nature. For Raz, the law is a realm of obligation and duty, “it acts not as our advisor but as an authority that must be obeyed. By framing the answer to the law’s normativity in terms of what the law itself claims over its subjects, law’s self image” . Further by stating that the law by nature claims legitimate authority, Raz provides a coherent account of the law’s normativity . Austin and Bentham, vewied law a series of command from a sovereign to an subject who is inferior, they held that law’s normativity, its ‘bindingness’, resised in the threat of the application of coercion from the sovereign in the light of subject’s non-compliance. On the other hand, Raz argued that the sanction based account of law’s normativity, which Austin states does not adequately explain as to how the law binds its subjects.
Kelsen’s idea of the ‘basic norm’ is another landmark attempt to explain the law’s normativity. He conceived law a system of norms and argued that every legal norm is ought to be followed only if it can be traced back to another and higher...