著者

小林 弘

出版者

英米文化学会

雑誌

英米文化 (ISSN:09173536)

巻号頁・発行日

no.37, pp.43-59, 2007-03-31

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In his The Elements of Law, De Cive, and Leviathan, Thomas Hobbes says that the English common lawyers in the seventeenth century confused lex with jus, law with right. He emphasizes that "Right, consisteth in liberty to do, or to forbear; whereas Law, determinth, and bindeth to one of them." (Leviathan,117) In brief, he regards right as liberty, or the absence of obligation and law as restraint, or the imposition of obligation. And he insists on a sharp distinction between right and law, and that right is priority of law. Hobbes's distinction between right and law is criticized by many commentators. For example, Richard Peters criticizes the word right Hobbes says for "a strange use." On the other hand, Leo Strauss admits the comment that Hobbes subordinates law to right. And Richard Tuck follows Strauss. Which comments are true? This is one of my subjects, though it is very difficult to solve. I dealt with this subject by Hobbes's method and his linguistic theory in De Corpore. And I reached the conclusion that the comment of Strauss is more proper than that of R. Peters.