The power of law: Spinoza’s contribution to legal theory

Research output: Chapter in Book/Report/Conference proceedingChapterScientific

Abstract

Spinoza’s legal theoretical ideas are based on psychological and sociological regularities in human behaviour of knowledge. His naturalistic and descriptive approach of the relationship between law and power shows that the exercise of state power on that basis - within the constitutional constraints – may be formally almost unlimited, but, indeed, materially there are limits. The ability of the government to regulate society has its limits which are inherent in the existence of the state.
Furthermore, Spinoza. tries to design a system of checks and balances in the distribution of powers between the various public bodies: a dynamic balance of powers.
Legal positivism can welcome Spinoza as a kindred spirit – although by no means unconditionally. Effectiveness is a constitutive requirement for positive law. However, effectiveness implies that citizens comply with the (civil) law not only for fear of reprisals, but also out of respect for commonwealth’s authority. Therefore, positive law has to take into account the interests and moral convictions of the people.
With regard the issue of sovereignty, for Spinoza. only a government that embodies the unity of the cooperating citizens has the exclusive (absolute) power to determine the bonum commune. Hence citizens should perceived government as legitimate, which in turn implies that it must strive for peace and security.
From this line of argument follows naturally, that the democratic state under the rule of law imposes at least one obligation on both government and citizens: government should permanently create a substantial loyalty of its citizens, on the one hand, but citizens must actively to support the state because of their interest in the existence of the state, on the other hand. In other words, neither party has room for arrogance or permissiveness.
In addition, for Spinoza democratic criticism should be based on obedience to the law. As a rule, obedience to the law should not be dependent on the substantive agreement with the law, which actually would undermine the democratic order.
Original languageEnglish
Title of host publicationDe macht van het recht
Subtitle of host publicationSpinoza's bijdrage aan de rechtstheorie
PublisherKluwer
Pages21-37
Number of pages17
ISBN (Print)0165-0483
Publication statusPublished - 1995

Fingerprint

legal theory
citizen
Law
positive law
obedience
legal positivism
civil law
distribution of power
commune
balance of power
regularity
constitutional state
loyalty
sovereignty
obligation
respect
peace
criticism
anxiety
ability

Keywords

  • Spinoza, legal theory, natural law, legal positivism, separation of powers, constitutional theory, history of ideas

Cite this

Gribnau, J. L. M. (1995). The power of law: Spinoza’s contribution to legal theory. In De macht van het recht: Spinoza's bijdrage aan de rechtstheorie (pp. 21-37). Kluwer.
Gribnau, J.L.M. / The power of law : Spinoza’s contribution to legal theory. De macht van het recht: Spinoza's bijdrage aan de rechtstheorie. Kluwer, 1995. pp. 21-37
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Gribnau, JLM 1995, The power of law: Spinoza’s contribution to legal theory. in De macht van het recht: Spinoza's bijdrage aan de rechtstheorie. Kluwer, pp. 21-37.

The power of law : Spinoza’s contribution to legal theory. / Gribnau, J.L.M.

De macht van het recht: Spinoza's bijdrage aan de rechtstheorie. Kluwer, 1995. p. 21-37.

Research output: Chapter in Book/Report/Conference proceedingChapterScientific

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Gribnau JLM. The power of law: Spinoza’s contribution to legal theory. In De macht van het recht: Spinoza's bijdrage aan de rechtstheorie. Kluwer. 1995. p. 21-37