Abstract

This text focuses on the grounding of the legal and political structure of the modern state and starts from the Hobbesian conception of power as absolute and unlimited power. For their part, Spinoza and Bentham argue, against Hobbes, for the need to set certain limits to power, although they each based it on radically different grounds. Spinoza’s political ontology makes it easy to carry out to the end what was permitted by a factual conception of power, which opens up the possibility of thinking about power in a different way, namely, normatively. The difference between the utilitarian approach and that of Spinoza is his special conception of natural law, which leads him to maintain that it can only be defended where men have rights in common, that is, where there is civil order, making the preservation of our being the justification and limit of the institutionalization of the civil order. Bentham, however, remains true to his empiricist conception and a prisoner of its shortcomings, so that he cannot conceive of the limit of power except as self-limitation. The reason is that he does not have a sufficiently consistent concept of natural rights. Bentham’s conception of them as “nonsense upon stilts” makes it impossible.