On The Philosophic Foundation Of The Positive Law

This discourse will answer this question, that why the modern jurisprudence must confront"what is law", which is also the core question of legal positivism. It selected Hobbes, who is the founder of both the modern jurisprudence and the classical nature law theory, as a key to the question. In the first part of this discourse, namely the introduction, it gave a brief description of the relation between Hobbes and the modern jurisprudence, also that between positive law and the modern jurisprudence. Through the brief description, it can find that,"what is law"as a critical question of the modernity of law, its foundation was just made by Hobbes. Thereby, in the followed two parts of this discourse, it emphatically analyzed the two underpinning which be used by Hobbes to establish the modernity of law. Modernity is dominated by scientism, and science based on the recognition of facts. Hobbes'theory about"nature state"is the very fact base of modernity. In the second part, it discovered what kind of fact the"nature state"is. The analysis demonstrate that,"nature state"not only a historical fact, but also a theological fact, whereas it also has a non-historical and non-theological face. Just on the base of non-historical historical and non-theological theological fact, Hobbes initiated a new language system, namely the modern language system, which is very different from the system of ancient Greek or middle ages. In this system, personal welfare depended on neither the polis, nor the God, but the"Leviathan"who be created by men to guard their liberty, all of these is the main theme of the third part of this discourse."Leviathan"is an artificial god, he can protect men from the"nature state", in which people battled with each other. Then, people gain the safety, the premise of the liberty. However,"Leviathan"may corrupt, he also may infringe upon personal liberty, and then become a beast. Therefore, it is very urgently to find a mechanism, on which the Leviathan relied to live long, and the Leviathan also be forbidden to do harm to personal liberty. The modern jurisprudence just do its whole efforts to find this mechanism, in other words, modern jurisprudence has its own study field, which was defined by Hobbes. The fourth part gave a discussion about this question.Modern jurisprudence has three key words, such as"state","citizen"and"law". Law is the link between state and citizen. Whether the state will protect his citizen, and whether the citizen will support his state, both of these completely depend on the law. Then, how to understand the law is another critical question. There is a distinction between nature law and positive law since the ancient Greek, so as in the modern jurisprudence. But to the modern jurisprudence, it is essential to answer"what is law actually", the reason is that this is a critical question to personal liberty. In the fifth part of this discourse, it elaborate on the question and conclude that, the recognition of positive law relate to the confirmation of the political community, and the definition of the personal liberty too. Consequently, the question"what is law actually"become to the core question of modern jurisprudence. As a founder of the modern jurisprudence, Hobbes was famous with his nature law thought, but he was also a founder of legal positivism. Look through the history of legal positivism, it can find that almost all the legal positivist walked in the way which was discovered by Hobbes. So the last part of this discourse was entitled"legal positivism after Hobbes".