Spinoza and Legal Theory

Hans Gribnau, Tilburg University, Fiscal Institute and the Center for Company Law, Leiden University, is publishing The Power of Law: Spinoza's Contribution to Legal Theory in Spinoza and Law (A. Santos Campos, ed., forthcoming). Here is the abstract.

In seventeenth century, the constitutional idea of the rule of law was recalibrated in the Republic of the United Provinces. Spinoza was one of the major figures in the Low Countries theorising about the optimal state and its constitutional foundations. He designs a dynamic system of checks and balances in the distribution of powers.

Spinoza’s 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 government to regulate society has its limits which are inherent in the existence of the state.

Legal positivism can welcome Spinoza as a kindred spirit – although by no means unconditionally. Indeed, 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, notwithstanding the conceptual separation between law and morality, positive law has to take into account the interests and moral convictions of the people.

Finally, Spinoza gives an answer to the key question of political philosophy, viz. the issue of sovereignty. Only a government that embodies the unity of the cooperating citizens has the exclusive (absolute) power to determine the bonum commune. Hence, government should permanently create a substantial loyalty of its citizens, on the one hand, but citizens must actively support the state because of their interest in the existence of the state, on the other hand.

In addition, citizen’s criticism of the political order 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. Otherwise, the legal order degenerates into a civil war.

Download the essay from SSRN at the link.