The Contract as a Source of the Law

The author of the present study deals with the philosophical and legal concep­tions of the English 17th-century thinker Thomas Hobbes (1588-1679). The study concentrates on both the problem of the contract as a presupposition of the rise of the state and its legitimation and that of the positive law in its regulative function although Hobbes is often associated with the natural law theory.

The study is divided into five sections. In the first one the author describes the historical background of Hobbes' philosophical and legal writings and accentuates England's complicated political situation of his time (monarchy, Oliver Cromwell's commonwealth, restoration). Many of Hobbes' conceptions were influenced by the topical events and their consequences.

The second part of the study contains the analysis of the contract as a presuppositon of the rise of the state. The author comes to the conclusion that Hobbes' social contract is only a model without the empirical connection with any real state in the past. This model of the initial natural starting point and the consequent contract making enabled the English philosopher to defend and to substantiate the authorised power of the state.

In the third section the author interprets Hobbes' concepts of the teleological power techniques in Leviathan or the Matter, Form and Power of a Commonwe­alth Ecclesiastical and Civil (1651) and found Hobbes' key-role in the history of the social contract theories as a creator of its most influential and stimulating paradigm.

The fourth part stresses Hobbes' philosophical stimuli for legal positivism in general and for its 18th- and 19th-century forms in particular.

In the fifth conclusive section the author of the study tries to clarify if Hobbes' conception of the state is based on liberalism or totalitarianism and came to the condusion that it was neither liberal nor totalitarian. He suggests another solution according to which Hobbes' views are based on the conception of state perfectio­nism which, however, differs from the ideal state in the conceptions of Plato and his successors. From this point of view, Hobbes moved from the classical, idealis­tic models going back to Greek philosophy towards the more modern and realistic legal theory which was typical of the later (Renaissance and post-Renaissance) stages of the development of philosophical and legal thought.