Law in Contemporary Society
Does it matter whether property arises prior to and independent of political society? What is the relevance of the origin of property for thinking about political and legal order?

On one hand, Hobbes argues that the state creates property rights. On the other, he maintains that certain rights predate the state.

According to Hobbes, the natural condition of mankind is a state in which individuals are in “a condition of war of everyone against everyone, in which everyone is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies” (Leviathan, 1651). Thus, in the State of Nature, individuals may lay claim to all things as there are no natural property rights. As a consequence, life in the state of nature is “poor, nasty, brutish, and short”(Leviathan, 1651). Hence, individuals are better off by forming an order or “sovereign power” which will help delineate boundaries between right and wrong.

According to Hobbes, property rights come into place in a civil society where the sovereign power helps enforce those rights and preserve order. But Hobbes also maintains that certain rights such as the right to life predate the state. Thus, even an individual who consents to the state’s power may justifiably resist the state’s attempt to deprive him of these pre-state owned rights.

If property arises prior to and independently of political society, the state’s interference with those rights may not sit well with individual property owners. It would be easier to justify resisting the state in such circumstances. This in turn will lead to the very same state of anarchy the sovereign power seeks to avoid. But what constitutes a pre-state owned property right?

Hobbes often emphasizes human life as a pre-state owned right that can be vigorously defended, even against a state whose power one has consented to. In modern society where the concept of property is broader, how far can the state power reach before infringing upon an individual's rights? Is a state justified in prohibiting abortion to a woman clinically deemed unsafe to raise a child? And what happens if the state then moves to deprive her from any rights to the same child citing her unfitness?

In Roe v. Wade, the plaintiff (Roe) is a pregnant woman who sued a Texas state defendant (Wade) for restricting her rights to seek an abortion, citing the unconstitutional nature of the state law. The U.S. Supreme Court ruled that a state provision to ban abortions unless it is for the purpose to save the life of the mother is unconstitutional. In reaching its decision, the court emphasizes the mother’s constitutional right to privacy which protects her right to seek abortion. But the court also qualified the right to seek abortions by balancing the woman’s right to privacy with the state’s countervailing interests including the state’s duty to protect women’s health against dangerous procedures and the duty to preserve prenatal life. Thus, the court concluded, the state may regulate abortion after the first trimester of pregnancy and even ban it once the fetus is declared “viable” unless it is to protect the mother’s health.

Under Hobbesian theory of the sovereign ruler, the state’s countervailing interests would prevail against the mother’s interests, especially when preservation of prenatal life is at stake. Citizens should abide by state laws, even when it is against their preferences.

But would the balance tip the other way if outcry and support for women’s rights to seek abortion became so intense as to greatly disturb peace and order within the sovereign state?

Consider the example above where a mentally challenged woman is deemed unfit to raise a child, yet forbidden to seek abortion and then deprived of her rights to her child. Even in such a case of apparent injustice, Hobbes would exort for negotiating with the state when individuals disagree with its laws instead of only vehemently protesting them. Hobbes’ position is driven by the fear or disturbing political/legal order which carries the risk of causing a war.

While noteworthy, Hobbes’ theory appears not to fully consider situations where the only way to effect change and advance peace/social order is to disturb the existing political order. There should be limits to state’s power that reach beyond individual’s rights to defend their own life. Otherwise, there will always be a risk of instability when there is growing support for changing laws and protecting rights, regardless of whether those rights were acquired before or after the state came into power.


Webs Webs

r1 - 24 Apr 2020 - 15:05:54 - ChristineFrancis
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM