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A Treatise of Legal Philosophy and General Jurisprudence

Editors: Pattaro, Enrico; Canale, Damiano; Grossi, Paolo; Hofmann, Hasso; Riley, Patrick

DOI: 10.1007/978-90-481-2964-5

ISBN: 978-90-481-2963-8

Publisher: Springer Netherlands - Springer Journals

Jan 1, 2009

11 - 20 of 25 Chapters

LitStream

Chapter 11The Legal Philosophy of Thomas Hobbes

Riley, Patrick

Pages: 379 –401

[It is best to view Hobbes (1588–1679) as the father of modern “legal positivism”—the doctrine that (in Hobbes’ words) “where there is no law there is no justice,” and that the so-called “state of nature” is a moral vacuum in which force and fraud are “cardinal virtues” (Hobbes 1957, 307, 86)....
LitStream

Chapter 12Consent and Natural Law in Locke’s Philosophy

Riley, Patrick

Pages: 403 –420

[Locke is sometimes represented as a consent and social contract theorist (Locke 1967, 41, 324ff.) sometimes as a theorist of natural law (ibid., 287–94), sometimes as a theorist of natural rights, particularly natural property rights (ibid., 375–6). The problem is that all three...
LitStream

Chapter 13The Legal Theory of Pufendorf

Riley, Patrick

Pages: 421 –431

[Samuel Freiherr von Pufendorf (1632–1694)1 was the most celebrated German legal philosopher of the second half of the 17th century, in virtue of three widely disseminated jurisprudential works: De Jure Naturae et Gentium (1670), De Officio Hominis et Civilis (1682), and the so-called Eris...
LitStream

Chapter 14Leibniz on Justice as “The Charity of Wise”

Riley, Patrick

Pages: 433 –462

[Though G. W. Leibniz (1646–1716) is thought of mainly as a theologian, metaphysician, logician and mathematician (the co-discoverer of calculus), his academic degrees were in jurisprudence and law (Cairns 1949, chap. 8), and he served both the king of Prussia in Berlin and the Emperor in Vienna...
LitStream

Chapter 15Malebranche and “Cartesianized Augustinianism”

Riley, Patrick

Pages: 463 –490

[Nicolas Malebranche (1638–1715)1 is, by general agreement, the greatest French philosopher between Descartes and Rousseau. And Malebranche’s central argument is that God (the only “necessary” being) governs the universe through simple constant “general laws” (lois générales) and “general wills”...
LitStream

Chapter 16Montesquieu and Vico

Riley, Patrick

Pages: 491 –505

[Montesquieu’s De l’esprit des lois (1748)1 is an astonishingly original work, and Émile Durkheim was wholly justified in viewing Montesquieu as the father of “the sociology of law.”2 But in many ways the least original part of Montesquieu’s treatise is its vocabulary—the notion that laws are...
LitStream

Chapter 17Hume and Smith

Riley, Patrick

Pages: 507 –519

[David Hume’s jurisprudence in the Treatise of Human Nature (1738–1740) is shaped by three converging features: anti-rationalism, anti-contractarianism, and (to use Hume’s own term) “conventionalism.” Hume’s anti-rationalism makes him deeply suspicious of latter-day demi-Platonists such as...
LitStream

Chapter 18Voltaire’s Skeptical Jurisprudence: Contra Leibnizian Optimism in Candide

Riley, Patrick

Pages: 521 –531

[While Malebranche’s Recherche de la généralité (“general” law and “general” will) is the dominant strain in French jurisprudence, finally shaping the legalpolitical thought of Montesquieu and of Rousseau, there is a recessive (but not negligible) strain which is “skeptical” (descended from...
LitStream

Chapter 19The Legal Philosophy of Jean-Jacques Rousseau

Riley, Patrick

Pages: 533 –551

[Inheriting from the celebrated late-Cartesian philosopher Malebranche the notion that a just God rules the universe through “general laws” and “general wills” which are worthy of his majestic simplicity, not through an ad hoc patchwork of arbitrary “particular wills,” Rousseau “secularizes” the...
LitStream

Chapter 20The Legal Philosophy of Kant

Riley, Patrick

Pages: 553 –578

[In Kant’s philosophy of law (Rechtslehre, 1797) there is an important and authentic “formalist” strand which holds that “any action is right if it can co-exist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can co-exist with...

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