Law power and morality : roots of the debate over the legal enforcement of morals with particular reference to the influence of Hobbes on the ideas of James Fitzjames Stephen.

Abstract

This thesis considers the thought of a leading nineteenth century intellectual and jurist, James Fitzjames Stephen. It examines the roots of his ideas on the interrelation between law and morality and focusses on an analysis of the central idea of force or power and the extent to which that idea is influenced by the thought of Thomas Hobbes. The findings arising out of this study of Stephen's ideas are then set within a critique of the traditions of thought upon which Stephen drew for his ideas, traditions which hove continued up to the present day. The introductory chapter discusses the political, intellectual and historical context within which Stephen's ideas were set, explaining their connection with a celebrated twentieth century debate over the use of the criminal law to enforce morals; it also contains a biographical sketch of Stephen. Chapter Two provides an account of Stephen's major work on society and politics, Liberty, Equality, Fraternity which comprises a critique of John Stuart mill's political and social ideas, especially of the essay On Liberty, and of other democratic currents of thought. This chapter is the main source for the analysis of Stephen's ideas in Chapter Three. Chapter Three examines Stephen's views on law and morality and the framework of ideas to which those views relate, including the central notion of force and his view of human nature with which the idea of force is closely connected. Chapter Four considers the influences of Utilitarianism, Evangelicalism and Liberalism on Stephen. Chapter Five gives an account of Hobbes' political theory and its theoretical foundations in preparation for Chapter Six which traces the influence of Hobbes on Stephen's thought with particular attention being given to the latter's views on law, power and morality. This chapter explains the extent to which Stephen's thought has been influenced by Hobbesian ideas Independently of the influence which Hobbes exercised via Utilitarianism and the Utilitarian legal theorists. The final chapter begins by considering certain implications of this study for the twentieth century debate over the legal enforcement of morality. This first part questions the validity of H.L.A. Hart's criticism of Stephen's argument on law and morals that it is not a Utilitarian one, and serves to introduce the second and major part of the chapter. In the latter is set forth a critique of the intellectual traditions associated with the problem of law, power and morality on which the thesis has been focussed. Here it is argued that the said intellectual traditions are encompassed by a single broad stream of thought called liberal theory and that the problem of law, power and morality is Inherent in liberal theory and arises out of a religious root expressed as a Humanistic faith.