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Published online by Cambridge University Press: 09 June 2015
In what follows, we must position ourselves in an obscure passage, a passage from the hostilities of nature to the serenity of civilized life. It is precisely here, at the dawn of social existence, that David Hume located the beginnings of law. His search for origins would eventuate in a narrative describing the spread of public peace by way of the greatest obstacle to such peace: unslacking self-interest. (That is what some refer to as an economy of means.) Along the route, language entered into his story with such prominence that it cannot safely be disregarded. We shall have to read Hume’s narrative as a narrative – that is, as a textual framing – if we hope to do justice to its arguments (about justice). To cross the gap between nature and society, we shall have to discover that the gap does not lie simply between them, but also lies within each of them. More specifically, we shall have to find that nature is perforce hollowed out by culture.
I wish to record my thanks for extremely helpful comments (on some or another version of this article) from Richard Bronaugh. Nigel Simmonds, and a group of faculty members at the University of Michigan Law School. This article is excerpted, with some modifications, from a long chapter on Hume in my forthcoming book. Legal Theory, Political Theory, and Deconsmtction: Against Rhadamanthus (to be published by Indiana University Press).
1. The main texts by Hume to which I shall be referring are A Treatise of Human Nature, edited by Selby-Bigge, L. andGoogle Scholar Nidditch, P. (Oxford: 1978) [hereinafter cited as Treatise]; an Enquiries concerning Human Understanding and concerning the Principles of Morals edited by Google Scholar Selby-Bigge, L. and Nidditch, P. (Oxford: 1975)[hereinafter cited as Enquiries].Google Scholar
2. See Treatise, supra note 1, at 477-84. For some useful analysis of these pages, see Jonathan, Harrison Theory of Justice, 1–13(Oxford: 1981).Google Scholar
3. Treatise, supra note 1, at 492.
4. Id. at 484–89.
5. Id. at 489.
6. Id. at 486.
7. Id.
8. Id.
9. Id. at 487.
10. Jerome Christensen, Practicing Enlightenment: Hume and the Formation of a Literary Career 27 (Madison 1987).
11. Treatise supra note 1, at 486.
12. Id. at 488.
13. Id. at 493.
14. Id. at 492.
15. Id. at 497–98.
16. Id. at 498–99.
17. Id. at 489.
18. For an interpretation that supports my analysis, seeDuncan, Forbes Hume’s Philosophical Politics 70–74 (Cambridge 1975).Google Scholar
19. Treatise, supra note 1, at 493.
20. Christensen, supra note 10, at 33. For similar views, see Forbes, supra note 18, at 70; John, Stewart The Moral and Political Philosophy of David Hume 148–50 (New York 1963).Google Scholar
21. Christensen, supra note 10, at 32.
22. Treatise, supra note 1, at 493. Even this quotation is not as damning as it appears, for it may well refer only to the creation of familial units. See Forbes, supra , note 18, at 74.
23. Treatise, supra note I, at 493.
24. Enquiries, supra note I, at 190.
25. I must here exclude Christensen, whose perspective is subtler than this (but still clearly divergent from my own). My differences with him will be fleshed out shortly.
26. Forbes, supra note 18, at 70.
27. See Althusser, “Sur le Contrat Social,” 8 Cahiers pour I’Analyse 5, 18–22 (1967).
28. Jacques, Derrida “Déclarations d’indépendance,” in Otobiographies 11 (Paris 1984) (my translation).Google Scholar
29. Robert, Derathé Jean-Jacques Rousseau et la Science Politique de Son Temps 173 (Paris 1959) (my translation).Google Scholar For a good statement of this view in a critical discussion of Hobbes, see Alasdair, Maclntyre A Short History of Ethics 136–7 (New York 1966).Google Scholar
30. Treatise, supra note 1, at 539-41. For an exposition of Hume’s view on this matter, see Didier, Deleule Hume ct la naissance du libéralisme économique 328 (Paris 1979).Google Scholar See also Forbes, supra note 18, at 73; Gerald, Postema, a, Bentham and the Common Law Tradition 122–23 (Oxford 1986).Google Scholar
31. John, Stuart Mill Autobiography 29 (Indianapolis 1957) (edited by C. Shields).Google Scholar
32. Hume, D. “Of the Original Contract,” in Hume’s Moral and Political Philosophy 356, 367–68 (New York, 1948).Google Scholar
33. Treatise, supra note 1, at 490 (emphasis in original).
34. Id.
35. See Christensen, supra note 10, at 26-34.
36. Id at 28-29.
37. Treatise, supra note 1, at 492.
38. Christensen supra note 10, at 29.
39. Id at 28 n.9.
40. Treatise, supra note 1, at 486.
41. Id. at 9, 10.
42. Id. at 493.
43. Enquiries, supra note 1, at 192.
44. Treatise, supra note 1, at 495.
45. See Christensen, supra note 10. at 27n.8 Cf. Enquiries, supra note I,at 191: “Inmanynations.the femalesex are reduced to … slavery, and are rendered incapable of all property, in opposition to their lordly masters.”
46. Enquiries, supra note 1, at 185.
47. Id. at 190.
48. Treatise, supra supra note 1, at 490. (To the words “express” and “mutually express’d” the emphasis has been added; other emphases are in the original.).
49. Id. at 497-98 (emphasis added).
50. Id. at 522-23 (emphasis added).
51. Id. at 490.
52. See, e.g., id. at 93.
53. Enquiries, supra note 1, at 191.
54. Treatise, supra note 1, at 591, 603.
55. Enquiries, supra note 1, at 229 (emphasis added).
56. Treatise, supra note 1, at 602 (emphasis added). Hume had moral judgments in mind here, but he knew that his argument applied just as much to factual judgments. See id. at 603; Enquiries, supra note 1, at 227–28.