法律精神的權力基礎為何?? - 法學

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網址：
http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXV


CHAPTER XV
OF OTHER LAWS OF NATURE
FROM that law of nature by which we are obliged to transfer to another such
rights as, being retained, hinder the peace of mankind, there followeth a
third; which is this: that men perform their covenants made; without which
covenants are in vain, and but empty words; and the right of all men to all
things remaining, we are still in the condition of war.

And in this law of nature consisteth the fountain and original of justice.
For where no covenant hath preceded, there hath no right been transferred,
and every man has right to everything and consequently, no action can be
unjust. But when a covenant is made, then to break it is unjust and the
definition of injustice is no other than the not performance of covenant. And
whatsoever is not unjust is just.

But because covenants of mutual trust, where there is a fear of not
performance on either part (as hath been said in the former chapter), are
invalid, though the original of justice be the making of covenants, yet
injustice actually there can be none till the cause of such fear be taken
away; which, while men are in the natural condition of war, cannot be done.
Therefore before the names of just and unjust can have place, there must be
some coercive power to compel men equally to the performance of their
covenants, by the terror of some punishment greater than the benefit they
expect by the breach of their covenant, and to make good that propriety which
by mutual contract men acquire in recompense of the universal right they
abandon: and such power there is none before the erection of a Commonwealth.
And this is also to be gathered out of the ordinary definition of justice in
the Schools, for they say that justice is the constant will of giving to
every man his own. And therefore where there is no own, that is, no
propriety, there is no injustice; and where there is no coercive power
erected, that is, where there is no Commonwealth, there is no propriety, all
men having right to all things: therefore where there is no Commonwealth,
there nothing is unjust. So that the nature of justice consisteth in keeping
of valid covenants, but the validity of covenants begins not but with the
constitution of a civil power sufficient to compel men to keep them: and then
it is also that propriety begins.

The fool hath said in his heart, there is no such thing as justice, and
sometimes also with his tongue, seriously alleging that every man's
conservation and contentment being committed to his own care, there could be
no reason why every man might not do what he thought conduced thereunto: and
therefore also to make, or not make; keep, or not keep, covenants was not
against reason when it conduced to one's benefit. He does not therein deny
that there be covenants; and that they are sometimes broken, sometimes kept;
and that such breach of them may be called injustice, and the observance of
them justice: but he questioneth whether injustice, taking away the fear of
God (for the same fool hath said in his heart there is no God), not sometimes
stand with that reason which dictateth to every man his own good; and
particularly then, when it conduceth to such a benefit as shall put a man in
a condition to neglect not only the dispraise and revilings, but also the
power of other men. The kingdom of God is gotten by violence: but what if it
could be gotten by unjust violence? Were it against reason so to get it, when
it is impossible to receive hurt by it? And if it be not against reason, it
is not against justice: or else justice is not to be approved for good. From
such reasoning as this, successful wickedness hath obtained the name of
virtue: and some that in all other things have disallowed the violation of
faith, yet have allowed it when it is for the getting of a kingdom. And the
heathen that believed that Saturn was deposed by his son Jupiter believed
nevertheless the same Jupiter to be the avenger of injustice, somewhat like
to a piece of law in Coke's Commentaries on Littleton; where he says if the
right heir of the crown be attainted of treason, yet the crown shall descend
to him, and eo instante the attainder be void: from which instances a man
will be very prone to infer that when the heir apparent of a kingdom shall
kill him that is in possession, though his father, you may call it injustice,
or by what other name you will; yet it can never be against reason, seeing
all the voluntary actions of men tend to the benefit of themselves; and those
actions are most reasonable that conduce most to their ends. This specious
reasoning is nevertheless false.

For the question is not of promises mutual, where there is no security of
performance on either side, as when there is no civil power erected over the
parties promising; for such promises are no covenants: but either where one
of the parties has performed already, or where there is a power to make him
perform, there is the question whether it be against reason; that is, against
the benefit of the other to perform, or not. And I say it is not against
reason. For the manifestation whereof we are to consider; first, that when a
man doth a thing, which notwithstanding anything can be foreseen and reckoned
on tendeth to his own destruction, howsoever some accident, which he could
not expect, arriving may turn it to his benefit; yet such events do not make
it reasonably or wisely done. Secondly, that in a condition of war, wherein
every man to every man, for want of a common power to keep them all in awe,
is an enemy, there is no man can hope by his own strength, or wit, to himself
from destruction without the help of confederates; where every one expects
the same defence by the confederation that any one else does: and therefore
he which declares he thinks it reason to deceive those that help him can in
reason expect no other means of safety than what can be had from his own
single power. He, therefore, that breaketh his covenant, and consequently
declareth that he thinks he may with reason do so, cannot be received into
any society that unite themselves for peace and defence but by the error of
them that receive him; nor when he is received be retained in it without
seeing the danger of their error; which errors a man cannot reasonably reckon
upon as the means of his security: and therefore if he be left, or cast out
of society, he perisheth; and if he live in society, it is by the errors of
other men, which he could not foresee nor reckon upon, and consequently
against the reason of his preservation; and so, as all men that contribute
not to his destruction forbear him only out of ignorance of what is good for
themselves.

As for the instance of gaining the secure and perpetual felicity of heaven by
any way, it is frivolous; there being but one way imaginable, and that is not
breaking, but keeping of covenant.

And for the other instance of attaining sovereignty by rebellion; it is
manifest that, though the event follow, yet because it cannot reasonably be
expected, but rather the contrary, and because by gaining it so, others are
taught to gain the same in like manner, the attempt thereof is against
reason. Justice therefore, that is to say, keeping of covenant, is a rule of
reason by which we are forbidden to do anything destructive to our life, and
consequently a law of nature.

There be some that proceed further and will not have the law of nature to be
those rules which conduce to the preservation of man's life on earth, but to
the attaining of an eternal felicity after death; to which they think the
breach of covenant may conduce, and consequently be just and reasonable; such
are they that think it a work of merit to kill, or depose, or rebel against
the sovereign power constituted over them by their own consent. But because
there is no natural knowledge of man's estate after death, much less of the
reward that is then to be given to breach of faith, but only a belief
grounded upon other men's saying that they know it supernaturally or that
they know those that knew them that knew others that knew it supernaturally,
breach of faith cannot be called a precept of reason or nature.

Others, that allow for a law of nature the keeping of faith, do nevertheless
make exception of certain persons; as heretics, and such as use not to
perform their covenant to others; and this also is against reason. For if any
fault of a man be sufficient to discharge our covenant made, the same ought
in reason to have been sufficient to have hindered the making of it.

The names of just and unjust when they are attributed to men, signify one
thing, and when they are attributed to actions, another. When they are
attributed to men, they signify conformity, or inconformity of manners, to
reason. But when they are attributed to action they signify the conformity,
or inconformity to reason, not of manners, or manner of life, but of
particular actions. A just man therefore is he that taketh all the care he
can that his actions may be all just; and an unjust man is he that neglecteth
it. And such men are more often in our language styled by the names of
righteous and unrighteous than just and unjust though the meaning be the
same. Therefore a righteous man does not lose that title by one or a few
unjust actions that proceed from sudden passion, or mistake of things or
persons, nor does an unrighteous man lose his character for such actions as
he does, or forbears to do, for fear: because his will is not framed by the
justice, but by the apparent benefit of what he is to do. That which gives to
human actions the relish of justice is a certain nobleness or gallantness of
courage, rarely found, by which a man scorns to be beholding for the
contentment of his life to fraud, or breach of promise. This justice of the
manners is that which is meant where justice is called a virtue; and
injustice, a vice.

But the justice of actions denominates men, not just, but guiltless: and the
injustice of the same (which is also called injury) gives them but the name
of guilty.

Again, the injustice of manners is the disposition or aptitude to do injury,
and is injustice before it proceed to act, and without supposing any
individual person injured. But the injustice of an action (that is to say,
injury) supposeth an individual person injured; namely him to whom the
covenant was made: and therefore many times the injury is received by one man
when the damage redoundeth to another. As when the master commandeth his
servant to give money to stranger; if it be not done, the injury is done to
the master, whom he had before covenanted to obey; but the damage redoundeth
to the stranger, to whom he had no obligation, and therefore could not injure
him. And so also in Commonwealths private men may remit to one another their
debts, but not robberies or other violences, whereby they are endamaged;
because the detaining of debt is an injury to themselves, but robbery and
violence are injuries to the person of the Commonwealth.

Whatsoever is done to a man, conformable to his own will signified to the
doer, is not injury to him. For if he that doeth it hath not passed away his
original right to do what he please by some antecedent covenant, there is no
breach of covenant, and therefore no injury done him. And if he have, then
his will to have it done, being signified, is a release of that covenant, and
so again there is no injury done him.

Justice of actions is by writers divided into commutative and distributive:
and the former they say consisteth in proportion arithmetical; the latter in
proportion geometrical. Commutative, therefore, they place in the equality of
value of the things contracted for; and distributive, in the distribution of
equal benefit to men of equal merit. As if it were injustice to sell dearer
than we buy, or to give more to a man than he merits. The value of all things
contracted for is measured by the appetite of the contractors, and therefore
the just value is that which they be contented to give. And merit (besides
that which is by covenant, where the performance on one part meriteth the
performance of the other part, and falls under justice commutative, not
distributive) is not due by justice, but is rewarded of grace only. And
therefore this distinction, in the sense wherein it useth to be expounded, is
not right. To speak properly, commutative justice is the justice of a
contractor; that is, a performance of covenant in buying and selling, hiring
and letting to hire, lending and borrowing, exchanging, bartering, and other
acts of contract.

And distributive justice, the justice of an arbitrator; that is to say, the
act of defining what is just. Wherein, being trusted by them that make him
arbitrator, if he perform his trust, he is said to distribute to every man
his own: and this is indeed just distribution, and may be called, though
improperly, distributive justice, but more properly equity, which also is a
law of nature, as shall be shown in due place.

As justice dependeth on antecedent covenant; so does gratitude depend on
antecedent grace; that is to say, antecedent free gift; and is the fourth law
of nature, which may be conceived in this form: that a man which receiveth
benefit from another of mere grace endeavour that he which giveth it have no
reasonable cause to repent him of his good will. For no man giveth but with
intention of good to himself, because gift is voluntary; and of all voluntary
acts, the object is to every man his own good; of which if men see they shall
be frustrated, there will be no beginning of benevolence or trust, nor
consequently of mutual help, nor of reconciliation of one man to another; and
therefore they are to remain still in the condition of war, which is contrary
to the first and fundamental law of nature which commandeth men to seek
peace. The breach of this law is called ingratitude, and hath the same
relation to grace that injustice hath to obligation by covenant.

A fifth law of nature is complaisance; that is to say, that every man strive
to accommodate himself to the rest. For the understanding whereof we may
consider that there is in men's aptness to society a diversity of nature,
rising from their diversity of affections, not unlike to that we see in
stones brought together for building of an edifice. For as that stone which
by the asperity and irregularity of figure takes more room from others than
itself fills, and for hardness cannot be easily made plain, and thereby
hindereth the building, is by the builders cast away as unprofitable and
troublesome: so also, a man that by asperity of nature will strive to retain
those things which to himself are superfluous, and to others necessary, and
for the stubbornness of his passions cannot be corrected, is to be left or
cast out of society as cumbersome thereunto. For seeing every man, not only
by right, but also by necessity of nature, is supposed to endeavour all he
can to obtain that which is necessary for his conservation, he that shall
oppose himself against it for things superfluous is guilty of the war that
thereupon is to follow, and therefore doth that which is contrary to the
fundamental law of nature, which commandeth to seek peace. The observers of
this law may be called sociable, (the Latins call them commodi); the
contrary, stubborn, insociable, forward, intractable.

A sixth law of nature is this: that upon caution of the future time, a man
ought to pardon the offences past of them that, repenting, desire it. For
pardon is nothing but granting of peace; which though granted to them that
persevere in their hostility, be not peace, but fear; yet not granted to them
that give caution of the future time is sign of an aversion to peace, and
therefore contrary to the law of nature.

A seventh is: that in revenges (that is, retribution of evil for evil), men
look not at the greatness of the evil past, but the greatness of the good to
follow. Whereby we are forbidden to inflict punishment with any other design
than for correction of the offender, or direction of others. For this law is
consequent to the next before it, that commandeth pardon upon security of the
future time. Besides, revenge without respect to the example and profit to
come is a triumph, or glorying in the hurt of another, tending to no end (for
the end is always somewhat to come); and glorying to no end is vain-glory,
and contrary to reason; and to hurt without reason tendeth to the
introduction of war, which is against the law of nature, and is commonly
styled by the name of cruelty.

And because all signs of hatred, or contempt, provoke to fight; insomuch as
most men choose rather to hazard their life than not to be revenged, we may
in the eighth place, for a law of nature, set down this precept: that no man
by deed, word, countenance, or gesture, declare hatred or contempt of
another. The breach of which law is commonly called contumely.

The question who is the better man has no place in the condition of mere
nature, where (as has been shown before) all men are equal. The inequality
that now is has been introduced by the laws civil. I know that Aristotle in
the first book of his Politics, for a foundation of his doctrine, maketh men
by nature, some more worthy to command, meaning the wiser sort, such as he
thought himself to be for his philosophy; others to serve, meaning those that
had strong bodies, but were not philosophers as he; as master and servant
were not introduced by consent of men, but by difference of wit: which is not
only against reason, but also against experience. For there are very few so
foolish that had not rather govern themselves than be governed by others: nor
when the wise, in their own conceit, contend by force with them who distrust
their own wisdom, do they always, or often, or almost at any time, get the
victory. If nature therefore have made men equal, that equality is to be
acknowledged: or if nature have made men unequal, yet because men that think
themselves equal will not enter into conditions of peace, but upon equal
terms, such equality must be admitted. And therefore for the ninth law of
nature, I put this: that every man acknowledge another for his equal by
nature. The breach of this precept is pride.

On this law dependeth another: that at the entrance into conditions of peace,
no man require to reserve to himself any right which he is not content should
he reserved to every one of the rest. As it is necessary for all men that
seek peace to lay down certain rights of nature; that is to say, not to have
liberty to do all they list, so is it necessary for man's life to retain
some: as right to govern their own bodies; enjoy air, water, motion, ways to
go from place to place; and all things else without which a man cannot live,
or not live well. If in this case, at the making of peace, men require for
themselves that which they would not have to be granted to others, they do
contrary to the precedent law that commandeth the acknowledgement of natural
equality, and therefore also against the law of nature. The observers of this
law are those we call modest, and the breakers arrogant men. The Greeks call
the violation of this law pleonexia; that is, a desire of more than their
share.

Also, if a man he trusted to judge between man and man, it is a precept of
the law of nature that he deal equally between them. For without that, the
controversies of men cannot be determined but by war. He therefore that is
partial in judgement, doth what in him lies to deter men from the use of
judges and arbitrators, and consequently, against the fundamental law of
nature, is the cause of war.

The observance of this law, from the equal distribution to each man of that
which in reason belonged to him, is called equity, and (as I have said
before) distributive justice: the violation, acception of persons,
prosopolepsia.

And from this followeth another law: that such things as cannot he divided be
enjoyed in common, if it can be; and if the quantity of the thing permit,
without stint; otherwise proportionably to the number of them that have
right. For otherwise the distribution is unequal, and contrary to equity.

But some things there be that can neither be divided nor enjoyed in common.
Then, the law of nature which prescribeth equity requireth: that the entire
right, or else (making the use alternate) the first possession, be determined
by lot. For equal distribution is of the law of nature; and other means of
equal distribution cannot be imagined.

Of lots there be two sorts, arbitrary and natural. Arbitrary is that which is
agreed on by the competitors; natural is either primogeniture (which the
Greek calls kleronomia, which signifies, given by lot), or first seizure.

And therefore those things which cannot be enjoyed in common, nor divided,
ought to be adjudged to the first possessor; and in some cases to the first
born, as acquired by lot.

It is also a law of nature: that all men that mediate peace he allowed safe
conduct. For the law that commandeth peace, as the end, commandeth
intercession, as the means; and to intercession the means is safe conduct.

And because, though men be never so willing to observe these laws, there may
nevertheless arise questions concerning a man's action; first, whether it
were done, or not done; secondly, if done, whether against the law, or not
against the law; the former whereof is called a question of fact, the latter
a question of right; therefore unless the parties to the question covenant
mutually to stand to the sentence of another, they are as far from peace as
ever. This other, to whose sentence they submit, is called an arbitrator. And
therefore it is of the law of nature that they that are at controversy submit
their right to the judgement of an arbitrator.

And seeing every man is presumed to do all things in order to his own
benefit, no man is a fit arbitrator in his own cause: and if he were never so
fit, yet equity allowing to each party equal benefit, if one be admitted to
be judge, the other is to be admitted also; and so the controversy, that is,
the cause of war, remains, against the law of nature.

For the same reason no man in any cause ought to be received for arbitrator
to whom greater profit, or honour, or pleasure apparently ariseth out of the
victory of one party than of the other: for he hath taken, though an
unavoidable bribe, yet a bribe; and no man can be obliged to trust him. And
thus also the controversy and the condition of war remaineth, contrary to the
law of nature.

And in a controversy of fact, the judge being to give no more credit to one
than to the other, if there be no other arguments, must give credit to a
third; or to a third and fourth; or more: for else the question is undecided,
and left to force, contrary to the law of nature.

These are the laws of nature, dictating peace, for a means of the
conservation of men in multitudes; and which only concern the doctrine of
civil society. There be other things tending to the destruction of particular
men; as drunkenness, and all other parts of intemperance, which may therefore
also be reckoned amongst those things which the law of nature hath forbidden,
but are not necessary to be mentioned, nor are pertinent enough to this place.

And though this may seem too subtle a deduction of the laws of nature to be
taken notice of by all men, whereof the most part are too busy in getting
food, and the rest too negligent to understand; yet to leave all men
inexcusable, they have been contracted into one easy sum, intelligible even
to the meanest capacity; and that is: Do not that to another which thou
wouldest not have done to thyself, which showeth him that he has no more to
do in learning the laws of nature but, when weighing the actions of other men
with his own they seem too heavy, to put them into the other part of the
balance, and his own into their place, that his own passions and self-love
may add nothing to the weight; and then there is none of these laws of nature
that will not appear unto him very reasonable.

The laws of nature oblige in foro interno; that is to say, they bind to a
desire they should take place: but in foro externo; that is, to the putting
them in act, not always. For he that should be modest and tractable, and
perform all he promises in such time and place where no man else should do
so, should but make himself a prey to others, and procure his own certain
ruin, contrary to the ground of all laws of nature which tend to nature's
preservation. And again, he that having sufficient security that others shall
observe the same laws towards him, observes them not himself, seeketh not
peace, but war, and consequently the destruction of his nature by violence.

And whatsoever laws bind in foro interno may be broken, not only by a fact
contrary to the law, but also by a fact according to it, in case a man think
it contrary. For though his action in this case be according to the law, yet
his purpose was against the law; which, where the obligation is in foro
interno, is a breach.

The laws of nature are immutable and eternal; for injustice, ingratitude,
arrogance, pride, iniquity, acception of persons, and the rest can never be
made lawful. For it can never be that war shall preserve life, and peace
destroy it.

The same laws, because they oblige only to a desire and endeavour, mean an
unfeigned and constant endeavour, are easy to be observed. For in that they
require nothing but endeavour, he that endeavoureth their performance
fulfilleth them; and he that fulfilleth the law is just.

And the science of them is the true and only moral philosophy. For moral
philosophy is nothing else but the science of what is good and evil in the
conversation and society of mankind. Good and evil are names that signify our
appetites and aversions, which in different tempers, customs, and doctrines
of men are different: and diverse men differ not only in their judgement on
the senses of what is pleasant and unpleasant to the taste, smell, hearing,
touch, and sight; but also of what is conformable or disagreeable to reason
in the actions of common life. Nay, the same man, in diverse times, differs
from himself; and one time praiseth, that is, calleth good, what another time
he dispraiseth, and calleth evil: from whence arise disputes, controversies,
and at last war. And therefore so long as a man is in the condition of mere
nature, which is a condition of war, private appetite is the measure of good
and evil: and consequently all men agree on this, that peace is good, and
therefore also the way or means of peace, which (as I have shown before) are
justice, gratitude, modesty, equity, mercy, and the rest of the laws of
nature, are good; that is to say, moral virtues; and their contrary vices,
evil. Now the science of virtue and vice is moral philosophy; and therefore
the true doctrine of the laws of nature is the true moral philosophy. But the
writers of moral philosophy, though they acknowledge the same virtues and
vices; yet, not seeing wherein consisted their goodness, nor that they come
to be praised as the means of peaceable, sociable, and comfortable living,
place them in a mediocrity of passions: as if not the cause, but the degree
of daring, made fortitude; or not the cause, but the quantity of a gift, made
liberality.

These dictates of reason men used to call by the name of laws, but
improperly: for they are but conclusions or theorems concerning what
conduceth to the conservation and defence of themselves; whereas law,
properly, is the word of him that by right hath command over others. But yet
if we consider the same theorems as delivered in the word of God that by
right commandeth all things, then are they properly called laws.




※ 引述《Augusta (好啦！我是大傲嬌...)》之銘言：
: ※ 引述《meblessme (123)》之銘言：
: : 作者: meblessme (123) 看板: LAW
: : 標題: Re: [請益] 法律精神的權力基礎為何??
: : 時間: Wed Feb 24 17:12:33 2010
: : 我可沒說不守法 也沒叫大家不要守法了
: : 我可是好公民呢!!
: : 可不想為了幾句話就被關到牢裡
: : 只是討論討論問個問題就要把我轟出國去
: : 未免也..............
: : 所以就讓在下來猜一猜
: : 真正的答案呢?
: : 只有兩個
: : 只是法學家說不出口
: : 因為這樣他們就沒有道德高度了
: : 第一呢
: : 是理論上
: : 答案是 沒有
: : 因為不管是任何的理論 都沒有絕對的道德性可言
: : 頂多只有相對的好壞與適不適合而已
: : 尤其在包含神學跟科學的崩壞後
: : 人類再也沒有絕對可靠的道德標竿了
: : 所以
: : 理論上 現代法律的精神上 沒有任何的道德基礎可言
: : 但卻又沒有辦法說出來
: 不會啊，
: Hobbes認為一開始大家本來就很認命地把生死交給國家，
: 而Austin就明說法律是主權者的命令，
: 根本臉不紅氣不喘。
: 極致的法實證主義從來就不遮掩「法律不需要道德基礎」的主張，
: 所以才會有納粹的「依法屠殺猶太人」。
: 接下來如果你要扯到後來的紐倫堡大審，
: 那你就是自打嘴巴。
: : 因為說出來 就沒有權力基礎可言了
: : 於是 當然就只好用一堆似是而非的理由吵個幾千年也吵不出個結果來
: : 第二呢
: : 是實際面
: : 答案是 統治階層的利益需要與價值喜好
: : 而本質呢 還是力量 不限於錢與槍桿子
: : 所有可以稱為實力的一部份的都可以算 也包含外貌跟運氣喔
: : 在需要民心的時候
: : 他們就會根據民心的需要而設立法律
: : 統治階層若有特殊喜好
: : 在不影響統治力時
: : 就會根據自身的喜好而制定法律
: : 在不影響統治力與自身價值喜好下
: : 就會根據自身的利益而設定法律
: : 在需要外國人的時候
: : 就會根據外國人的需要而設定法律
: : 當然還是不能說出來
: 不單是統治者，
: Hume就明說人作為理性主體本就是利益或偏好取向，
: 治人者或受治於人者都一樣
: 所以後來才會發展出民主制度，
: 讓大家都有機會當官，都有可能丟官，
: 大家怕失勢後被報復，掌權時就不敢亂搞，
: 一套粗陋的民主與法治機制即隱然成形。
: : 不然還是一樣 會被冠上自私自利的帽子而失去權力基礎
: : 沒有要違法喔 只是把某些不切實際的價值給戳破而已

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