Preface: In order to understand this essay, it is helpful to read this brief summary of Riggs v. Palmer, as well as the transcript linked there. Also, this essay deals with Hobbes’s philosophy of legal positivism; again, the hardlinks may be helpful, while reading Leviathan may be even more so. All page numbers are references to the anthology Law and Morality, edited by David Dyzenhaus and Arthur Ripstein and published by the University of Toronto Press.

In Riggs v. Palmer, a majority of the assembled judges delivered a verdict that was in conflict with the written statutory law. The majority judges’ reasoning in finding for the appellants is in obvious conflict with Hobbes’s views on the purview of jurisprudence and the common law. This is most apparent in Judge Earl’s summation, where he states that “…all laws, as well as all contracts, may be controlled in their operation and effect by general, fundamental maxims of the common law.”(136) Hobbes, by contrast, holds the creation of new law through jurisprudence and the common law to be contrary to the laws of nature, in that it does not follow from the will of the Sovereign(27). Nevertheless, it possible that, in approaching the matter from two different viewpoints, both Hobbes and the majority judges may have arrived at the same conclusion. Therefore, it is necessary to examine the points argued by the majority judges in rendering their judgment, and examine to what extent, if any, they are in agreement with Hobbes’s treatise. As will be shown, such an examination shows that the majority verdict is in definite conflict with Hobbes’s philosophy. Therefore, it does indeed seem obvious that Hobbes would agree with the dissenting judges, in finding that the statutory law should be upheld.

The majority judges claim that to find in favour of the grandson would have been an absurd decision – in other words, one that runs contrary to the intent of the Legislature in enacting the law(136). Hobbes recognizes that the letter of the law can sometimes tend to results that are not consistent with the reason (and hence the will) of the Sovereign, and goes on to state that in all cases it is the will of the Sovereign that is the more important of the two(28). However, to suppose that finding in favour of the grandson is obviously against the will of the Sovereign is to confuse the courts’ interest in the criminal case of the murder itself with the civil matter of the allotment of the grandfather’s estate. While the law demands that the grandson be punished for the murder of the grandfather, this is a matter that has already been both addressed and resolved – the grandson has been found guilty, and is serving time in jail at the time of Riggs v. Palmer(137). This being the case, the matter before the court in Riggs v. Palmer is an entirely separate issue.

The matter before the court is one that deals with the probate of wills – as such, the will of the Sovereign is to be found in the determinant content codified in the laws governing the execution, alteration, and revocation of wills. As is made clear by the dissenting judges, these laws include no provisions that touch on the matter before the court – rather, the law is explicit in stating that “No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered otherwise.”(139) From this, it seems obvious that the intent of the Sovereign in creating this law was to provide strict rules governing the court’s purview in the matter of wills. To render a verdict that oversteps these bounds appears to be a blatant contradiction of the will of the Sovereign. While the majority judges might reasonably assume that the members of the Legislature that enacted this law might be sympathetic to their outlook, in Hobbes’s view it is the artificial person of the Sovereign alone whose will is of any importance(25).

Another argument against finding for the grandson is the axiom “No one shall be permitted to… take advantage of his own wrong.”(136) However, it can be shown that this statement is tautological, and therefore trivial, when viewed from the standpoint of Hobbes’s ethics. In Hobbes’s view, “wrong” is characterized as behaviour that runs contrary to the laws of nature(23). This includes taking action in violation of laws imposed by the Sovereign, as the existence and power of the Sovereign follow from these same laws(24). Any other behaviour, such as is not in conflict with any laws, is considered to be within the scope of a person’s rights(25). Furthermore, it follows from the Sovereign’s absolute power in making law(25) that it is left to the sovereign to impose punishments for breaking these laws. After the punishment has been served, the crime is considered from a legal standpoint to have been redressed. Therefore, anyone who has been tried by the courts that represent the will of the Sovereign, and have been found either guilty (in which case they are served punishment that compensates for their crime,) or innocent of a crime (in which case no wrongdoing has taken place,) cannot be said to have taken advantage of their own wrong. Whereas the axiom is therefore trivial, it cannot be used in advancement of a case made against any individual.

It should be noted that both the majority(136) and dissenting judges(138), and most probably Hobbes as well, would agree that disinheritance would be eminently reasonable as an additional punishment in the case of the murder of a testator. However, the pertinent issue is that this does not reflect the law as it is written(138). In the majority judges’ view, this is not a problem, since they feel comfortable in exercising jurisprudence to create new law, within the scope of common law(137). Indeed, Judge Earl argues that the original creators of the written law deliberately neglected to provide for these circumstances on the grounds that such provisions would be superfluous to the maxims of the common law that were already in existence(Ibid.). By contrast, both the dissenting judges(139) and Hobbes(27) agree that there is only one appropriate channel through which new law can be created; that is, through the Sovereign. In the absence of such a revision to the law, the law as it is written is paramount. The court is obliged to uphold the validity of the will. That the will makes an heir of a murderer is of no consequence to the law, and hence of no consequence to the court.

In his summation, the dissenting Judge Gray outlines the reasons for his opposition to the majority verdict. The reasons are in complete agreement with Hobbes’s notions of the responsibilities of a judge; namely, that the judge should always look to the law for the answer to the question before the court(138). In particular, in placing the demands of the law above their own moral sense, the dissenting judges meet the burden that would, to Hobbes, seem to be conspicuously lacking in the verdict of the majority; namely, that the judges should place the reason of the Sovereign above their own(35). In conclusion, then, the dissenting judges seem to represent an outlook that, while it may differ in some specifics from Hobbes’s philosophy, nevertheless shares the basic conviction that the only valid framework for the law is that which has been set out by the governing body; in this case, the New York legislature. The common objection to the majority’s overruling of the written law makes it obvious that Hobbes would prefer the dissenting judgment.

T.A.'s note: "OK, but couldn't the majority judges (and maybe Hobbes) say that the judge is authorized to consider legislative intent, and that consideration of that issue implies consideration of the common law/laws of nature, which includes (rightly or wrongly) the notion of not profitting from wrongdoing, notwithstanding a concomitant criminal penalty for the wrongdoing."

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