The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11)
Thomas Hobbes · en
7. That law can never be against reason, our lawyers are agreed; and
that not the letter, that is every construction of it, but that which is
according to the intention of the legislator, is the law. And it is
true: but the doubt is of whose reason it is, that shall be received for
law. It is not meant of any private reason; for then there would be as
much contradiction in the laws, as there is in the Schools; nor yet, as
Sir Edward Coke makes it, an _artificial perfection of reason, gotten by
long study, observation, and experience_, as his was. For it is possible
long study may increase, and confirm erroneous sentences: and where men
build on false grounds, the more they build, the greater is the ruin:
and of those that study, and observe with equal time and diligence, the
reasons and resolutions are, and must remain discordant: and therefore
it is not that _juris prudentia_, or wisdom of subordinate judges; but
the reason of this our artificial man the commonwealth, and his command,
that maketh law: and the commonwealth being in their representative but
one person, there cannot easily arise any contradiction in the laws; and
when there doth, the same reason is able, by interpretation, or
alteration, to take it away. In all courts of justice, the sovereign,
which is the person of the commonwealth, is he that judgeth: the
subordinate judge, ought to have regard to the reason, which moved his
sovereign to make such law, that his sentence may be according
thereunto; which then is his sovereign’s sentence; otherwise it is his
own, and an unjust one.
[Sidenote: Law made, if not also made known, is no law.]
8. From this, that the law is a command, and a command consisteth in
declaration, or manifestation of the will of him that commandeth, by
voice, writing, or some other sufficient argument of the same, we may
understand, that the command of the commonwealth is law only to those,
that have means to take notice of it. Over natural fools, children, or
madmen, there is no law, no more than over brute beasts; nor are they
capable of the title of just, or unjust; because they had never power to
make any covenant, or to understand the consequences thereof; and
consequently never took upon them to authorize the actions of any
sovereign, as they must do that make to themselves a commonwealth. And
as those from whom nature or accident hath taken away the notice of all
laws in general; so also every man, from whom any accident, not
proceeding from his own default, hath taken away the means to take
notice of any particular law, is excused, if he observe it not: and to
speak properly, that law is no law to him. It is therefore necessary, to
consider in this place, what arguments, and signs be sufficient for the
knowledge of what is the law; that is to say, what is the will of the
sovereign, as well in monarchies, as in other forms of government.
[Sidenote: Unwritten laws are all of them laws of nature.]