Obedience Of Common Law&Collaboration With The Parliament

Thomas Hobbes is the founder of modern political philosophy. He lived through theperiods of Absolute Monarch, Revolution and Civil War, the Republic and the Restoration inBritish history.“A Dialogue Between a Philosopher and a Student of The Common Laws ofEngland”, is a very important work written in Hobbes’s old age, discussing law and politics.Unlike “Leviathan”,“De Cive” and other works, the “Dialogue” haven’t got enough attention.Both at home and abroad, academic studies on the “Dialogue” are scarce. Since the theme ofthe “Dialogue” is about the specific legal and political practice of England in the17thcentury,and not wrapped in the cloak of mechanical psychology, it is easier for us to discoverHobbes’s views on the politics, laws and civil war of his age in this work. Research on the“Dialogue” is of great significance for a complete understanding of Hobbes’s political andlegal thought.The reasons Hobbes chose the form of dialogue were his fear of being accused of heresy,the political sensitivity of the topic and the character of his opponent’s theory (EdwardCoke’s legal theory itself is scattered and unsystematic). The substance of the “Dialogue” canbe summarized into two themes: the Philosopher’s criticism and reformation of the Englishcommon law and the Philosopher’s adjustment of the relationship between the King and theParliament.To criticize and reform the common law, the Philosopher first used natural reason toreplace the common lawyer’s artificial reason, then he took common law as right reason andmade reason equivalent to equity. Therefore, the common law based on tradition and theautonomy of professional legal reason were subjected to the sovereignty. To reform thespecific legal system of England, the Philosopher gave the Chancery Court a supreme positionunder the King to lead the whole judicial system; he reformed the common law’s regulationsand doctrines of crime and punishment: to expand the scope of High Treason, exclude theunreasonable rules concerning Felony, cancel the common law’s conviction and punishmentof Heresy, and criticize penalty provided by the common law to be harsh and vengeful, on thecontrary put forward the theory of preventive penalty.In the “Dialogue”, Hobbes reconsidered and revised his opinion about the relationshipbetween the King and the Parliament. He changed the negative attitude towards Parliament in his earlier works, treated it as a legitimate organization to compensate the deficiency of themonarch’s reason and an indispensable part of English system of government. He admittedthe necessity of the King listening to the advices of the Parliament. The legislation ifnecessary or involving the punishment of life or member must be consented by the Parliament.However, Hobbes did not retreat from his absolute sovereignty theory, instead, he improved itby reflecting on the Civil War.The intention of Hobbes, in his latter years, undertaking a polemic against Coke, therepresentative of common lawyers, was to disclose the political danger lurked behind thecommon law theory. Coke’s common law theory associated with the radical republican theoryin the House of Commons, provided legitimacy for the Parliament’s rebellion and were thesources of advocating regicide. As Hobbes see it, in order to resolve the sovereignty crisis inthe17thcentury, these dangerous private opinions must be expelled from the public domain,and a new political science should be devised to lay a solid foundation for the sovereignty. Inaddition, Hobbes gave some constructive suggestions about how to re-unify England after theRestoration: to alleviate the subjects’ hostility to the monarch, collaboration of the King andthe Parliament, to make full use of the Parliament as a link between the monarch and hissubjects.The “Dialogue” opened a debate between the common lawyers and the sovereignty. Thecommon law theory actually provided legitimacy for the Parliament’s rebellion, but on theother hand, it maintained the English tradition of prudence and respect of law even in theRevolution. With the decline of republican theory in continental Europe in the18thcentury,the liberal theory initiated by Hobbes continued to develop. In North America, the commonlaw tradition and the liberal theory combined with each other perfectly. The qualities ofaristocracy and prudence inherent in common law tradition have played an important role inmaintaining a democratic republic and preventing the tyranny of the majority.