“But though this [the state of nature] be a state of liberty, yet it is not a state of licence: though man in that state has an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who win but consult it, that being all equal and independent, no one ought to harm another in his life,
health, liberty, or possessions” * (for we are all God’s property). â€
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* Cf. the Declaration of Independence.
â “They are his property, whose workmanship they are, made to last during his, not another’s € pleasure,” as Locke puts it.
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It presently appears, however, that, where most men are in the state of nature, there may nevertheless be some men who do not live according to the law of nature, and that the law of nature provides, up to a point, what may be done to resist such criminals. In a state of nature, we are told, every man can defend himself and what is his. “Who so sheddeth man’s blood, by man shall his blood be shed” is part of the law of nature. I may even kill a thief while he is engaged in stealing my property, and this right survives the institution of government, although, where there is government, if the thief gets away I must renounce private vengeance and resort to the law.
The great objection to the state of nature is that, while it persists, every man is the judge in his own cause, since he must rely upon himself for the defence of his rights. For this evil, government is the remedy, but this is not a natural remedy. The state of nature, according to Locke, was evaded by a compact to create a government. Not any compact ends the state of nature, but only that of making one body politic. The various governments of independent States are now in a state of nature towards each other.
The state of nature, we are told in a passage presumably directed against Hobbes, is not the same as a state of war, but more nearly its opposite. After explaining the right to kill a thief, on the ground that the thief may be deemed to be making war upon me, Locke says:
“And here we have the plain ‘difference between the state of nature and the state of war,’ which, however some men have confounded, are as far distant, as a state of peace, good-will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction are from one another.”
Perhaps the law of nature must be regarded as having a wider scope than the state of nature, since the former deals with thieves and murderers, while in the latter there are no such malefactors. This, at least, suggests a way out of an apparent inconsistency in Locke, consisting in his sometimes representing the state of nature as one where every one is virtuous, and at other times discussing what may rightly be done in a state of nature to resist the aggressions of wicked men.
Some parts of Locke’s natural law are surprising. For example, he says that captives in a just war are slaves by the law of nature. He says also that by nature every man has a right to punish attacks on himself or his property, even by death. He makes no qualification, so
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that if I catch a person engaged in petty pilfering I have, apparently, by the law of nature, a right to shoot him.
Property is very prominent in Locke’s political philosophy, and is, according to him, the chief reason for the institution of civil government:
“The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of nature there are many things wanting.”
The whole of this theory of the state of nature and natural law is in one sense clear but in another very puzzling. It is clear what Locke thought, but it is not clear how he can have thought it. Locke’s ethic, as we saw, is utilitarian, but in his consideration of “rights” he does not bring in utilitarian considerations. Something of this pervades the whole philosophy of law as taught by lawyers. Legal rights can be defined: broadly speaking, a man has a legal right when he can appeal to the law to safeguard him against injury. A man has in general a legal right to his property, but if he has (say) an illicit store of cocaine, he has no legal remedy against a man who steals it. But the lawgiver has to decide what legal rights to create, and falls back naturally on the conception of “natural” rights, as those which the law should secure.
I am attempting to go as far as is possible towards stating something like Locke’s theory in untheological terms. If it is assumed that ethics, and the classification of acts as “right” and “wrong,” is logically prior to actual law, it becomes possible to restate the theory in terms not involving mythical history. To arrive at the law of nature, we may put the question in this way: in the absence of law and government, what classes of acts by A against B justify B in retaliating against A, and what sort of retaliation is justified in different cases? It is generally held that no man can be blamed for defending himself against a murderous assault, even, if necessary, to the extent of killing the assailant. He may equally defend his wife and children, or, indeed, any member of the general public. In such cases, the existence of the law against murder becomes irrelevant, if, as may easily happen, the man assaulted would be dead before the aid of the police could be invoked; we have, therefore, to fall back on “natural” right. A man
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also has a right to defend his property, though opinions differ as to the amount of injury he may justly inflict upon a thief.
In the relations between States, as Locke points out, “natural” law is relevant. In what circumstances is war justified? So long as no international government exists, the answer to this question is purely ethical, not legal; it must be answered in the same way as it would be for an individual in a state of anarchy.
Legal theory will be based upon the view that the “rights” of individuals should be protected by the State. That is to say, when a man suffers the kind of injury which would justify retaliation according to the principles of natural law, positive law should enact that the retaliation shall be done by the State. If you see a man making a murderous assault upon your brother, you have a right to kill him, if you cannot otherwise save your brother. In a state of nature–so, at least, Locke holds–if a man has succeeded in killing your brother, you have a right to kill him. But where law exists, you lose this right, which is taken over by the State. And if you kill in self-fence or in defence of another, you will have to prove to a law-court that this was the reason for the killing.
We may then identify “natural law” with moral rules in so far as they are independent of positive legal enactments. There must be such rules if there is to be any distinction between good and bad laws. For Locke, the matter is simple, since moral rules have been laid down by God, and are to be found in the Bible. When this theological basis is removed, the matter becomes more difficult. But so long as it is held that there is an ethical distinction between right actions and wrong ones, we can say: Natural law decides what actions would be ethically right, and what wrong, in a community that had no government; and positive law ought to be, as far as possible, guided and inspired by natural law.
In its absolute form, the doctrine that an individual has certain inalienable rights is incompatible with utilitarianism, i.e., with the doctrine that right acts are those that do most to promote the general happiness. But in order that a doctrine may be a suitable basis for law, it is not necessary that it should be true in every possible case, but only that it should be true in an overwhelming majority of cases. We can all imagine cases in which murder would be justifiable, but they are rare, and do not afford an argument against the illegality of murder.
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Similarly it may be–I am not saying that it is–desirable, from a utilitarian point of view, to reserve to each individual a certain sphere of personal liberty. If so, the doctrine of the Rights of Man will be a suitable basis for the appropriate laws, even though these rights be subject to exceptions. A utilitarian will have to examine the doctrine, considered as a basis for laws, from the point of view of its practical effects; he cannot condemn it ab initio as contrary to his own ethic.
C. THE SOCIAL CONTRACT
In the political speculation of the seventeenth
