CHAPTER EIGHT
LOCKE’S unpublished Questions Concerning the Law of Nature reveals much of his thinking about the natural law tradition—far more than the later Two Treatises of Government, and more even than the Essay Concerning Human Understanding. The Essay reproduces much of the critical reasonings of the Questions, but does not make their application to the natural law tradition so clear. Nonetheless, the Questions itself fails to do more than hint at the political teaching that might be implied by Locke’s new understanding of the law of nature. The Questions helps one understand the innards of Locke’s political philosophy, but Two Treatises remains indispensable.1 There the implications of Locke’s break with the tradition, and especially with the most important representative of it at Locke’s time, Grotius, become clear. Thus it forms a central part of the story of Locke’s supplanting Grotius, as the authoritative thinker for the Anglo-American Whig tradition.
THE TRANSCENDENT NATURAL LAW IN “TWO TREATISES”
Two Treatises of Government carries forward the main themes of Locke’s confrontation with the tradition and particularly with Grotius, as developed earlier in the Questions. The two-step argument of the Questions reappears: first a version of the new transcendent law of nature Locke tentatively developed in the Questions, then a dissolution of the transcendent law of nature into natural rights.2 As in the Questions, Locke is content to have the whole remain rather blurry; he attempts to leave the impression that even his transcendent natural law, to say nothing of natural rights, fundamentally harmonizes with the very different Thomist natural law of traditional writers like Richard Hooker.3 Nonetheless, Locke’s trajectory in Two Treatises becomes very apparent by the time he comes to draw the chief political implications of his natural law: government for him comes to be solely for the sake of rights, renamed “property.” Human beings, he says, agree to a compact to make civil society and government for the sake of “the material preservation of their lives, liberties, and estates, which I call by the general name, ‘property’ ” (II 123), a conclusion no Thomist natural law theorist like Hooker could accept.
The natural law doctrine Locke begins with in Two Treatises is a simplified version of the natural law explicitly presented in the Questions. He again deploys a version of his very anti-Grotian “God the artificer” argument, although significantly in Two Treatises he makes no effort to prove the existence of such a God. Two Treatises is a less philosophical work than the Questions.4 “Men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business, they are his property, whose workmanship they are” (II 6). Made by God, human beings belong to God—the paradigm case, it appears, of a labor theory of property. Although his argument is slightly different, Locke in Two Treatises rejects Grotius’s etiamsi as he had done in the Questions. The transcendent natural law is known entirely through knowledge of God the Creator. Locke thus not only holds the creating God to be indispensable, but he deduces the content of natural law from the relation of humanity to God as creature to Creator.
As in the Questions, the natural law derives from the human relation to the transcendent creating God, but in Two Treatises the central idea is the human being as property of God the maker. Filmer, perhaps, suggested the idea to Locke, for he had argued, in effect, that all human beings were originally the property of Adam, because Adam was their source or origin.5 Even if Filmer’s major premise is correct, that the one “who gives life and being” has authority over the ones to whom life and being are given, Locke piously insists that Filmer was quite mistaken in his identification of the prime “begetter”: “They who say the father gives life to his children, are so dazzled with the thoughts of monarchy, that they do not, as they ought, remember God, who is the author and giver of life” (I 52).
Locke’s opening argument in the Second Treatise, then, carries forward the main line of his critique of Filmer. The “workmanship argument” saves him from reliance on the kind of teleological argument that still found a place in his transcendent natural law in the Questions.6 The workmanship argument thus allows Locke to present an even more untraditional argument than he had deployed in the Questions. His first inference from the Creator-creature relation is the natural freedom and equality of human beings, that is, the natural condition as a state of nature. If God has given no explicit sign of “appointment” or precedence to one over another of the creatures, then their “independence” would follow (II 4).
Human beings by nature are free and equal, in that they do not “depend upon the will of any other man,” but they nonetheless remain “within the bounds of the law of nature” (II 4). The natural law prescriptions described in the early chapters of the Second Treatise essentially have the character of limits on an otherwise existing natural freedom. Locke derives these limits from the workmanship argument as well. Human beings “are his property, whose workmanship they are, made to last during his, not one another’s pleasure.” If human beings belong to God, they cannot belong to one another, or even to themselves. Since God is the true proprietor, no one else has the right to damage or destroy his property. From this thought Locke derives a general “no-harm” principle.7 They may not “take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another” (II 6). From this general limit, Locke infers limits on what human beings may appropriate from “that which God gave to mankind in common. . . . The same law of nature, that does . . . give us property, does also bound that property too” (II 25, 31). Likewise, “a man [has] not . . . power over his own life,” presumably for the same reason, that God owns us all.
Contrary to Grotius, then, Locke unqualifiedly affirms inalienability.8 No one can “by compact, or his own consent, enslave himself to anyone nor put himself under the absolute, arbitrary power of another to take away his life, when he pleases.” Or, as Locke summarily puts it, “he that cannot take away his own life cannot give another power over it” (II 23). Thus from the workmanship argument via the “no-harm” principles apparently follows many of the most characteristic strands of Lockean liberalism, particularly his rejection of absolutism and his reservation of a natural right of resistance.9
Even the central doctrine of natural rights would seem to follow. The natural law limitations that follow from God’s proprietorship set out the natural duties that primordially govern human life. Natural rights would seem to be the duties of others as they appear to the individual toward whom the duties are owed.10 For example, if all others have a duty not to take my life, I can be said to have a right to life vis-à-vis them. To have a right, then, is merely to be the beneficiary of the duties of others. Rights, according to this view, are clearly not primary but derivative.
Locke’s natural law in Two Treatises thus has a remarkably narrow content. It is not clear that the principle Locke identifies as standing behind that natural law does or ought to produce such a narrow content. Humankind, Locke says, is “sent into the world by [God’s] order, and about his business,” but why is this “business” exhausted by mere forbearance from harming self and others, as Locke has it (II 6)? Might not “God’s business” have more to it? What, after all, is “his business”?11 Although Locke supplies more specific details about the content of the law of nature than he had in the Questions, he gives little of the reasoning that generates this content from the first principles of the natural law. It is not evident, in other words, that the content of the law of nature in fact follows from the creator-God thesis with which Locke ostensibly begins. He is certainly more definite about that content than his explicit reasonings warrant.
The workmanship argument parallels Filmer’s argument about fatherhood, in holding that the progenitor retains property rights in the generated. God’s rights over human beings exhaust the field of possible rights; there can be no other rights-holders, except in the secondary and derivative sense that each comes to possess the right to the forbearance of the others that is the obverse of the universal lack of rights over mankind in any but the real owner, God. Human beings are “made to last during his, not one another’s pleasure” (II 6). God’s proprietary rights extend to the right to destroy his workmanship.12 As Locke asks more than once in his writings, Has not the potter the right to destroy the pot? The core of Locke’s transcendent natural law comes to view just here: God gives life, and God may take it back—and only God may do so. The sovereign and ultimately arbitrary God of Protestant theology lurks just beneath the surface of Locke’s argument. Is God’s “business” the mere exercise of arbitrary power? Ironically, Locke attempts to use this transcendent, sovereign, arbitrary God to lay the groundwork for nonarbitrary human order. It is as though God is to be the scapegoat for the community; on his head is to be laid all the arbitrariness that humans can conceive and with him it is to be driven out of this worldly sphere.13
The tie that binds the first and second treatises together, then, appears to be the notion of God as maker, or, more important, as owner. The negative implication of God’s proprietorship rules out Filmer’s doctrine of Adam and his heirs as owner; the positive implications constitute the main outlines of the transcendent natural law teaching of the Second Treatise. The most important of those implications can be stated succinctly in terms of one proposition—human beings are by nature free and equal—and three limitations imposed on humanity: (1) human beings are not morally free to harm one another; (2) human beings are not morally free to harm themselves, that is, they may not commit suicide; (3) human beings are not morally free to harm each other indirectly by appropriating more than their share of the external world. At times Locke summarizes these three limitations under natural law in terms of an obligation to “preserve mankind” (II 6).14
Locke’s three limitations show his distance from Hobbes as well as from Filmer. Although Hobbes agrees that human beings are free and equal by nature, he interprets that freedom and equality in a much more radical way than Locke does in the early pages of the Second Treatise.15 For Hobbes the primary and original fact is the possession of “the right of nature,” defined as “the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto.” The original moral (or quasimoral) fact is not a set of limits, as in Locke, but a liberty to do what each considers necessary for preservation. That liberty amounts to a “right to everything, even to one another’s body.”16 So far is Locke from affirming a right to the bodies of others that he denies even a right over one’s own body and life. From this very important difference flows the oft-noted dissimilarity between the two philosophers’ conceptions of the state of nature. Locke refuses to accept Hobbes’s identification of the state of nature as a state of war. “However some men have confounded” them, they “are as far different, 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” (II 19).
Just as in the Questions, however, Locke substantially modifies his position as he proceeds through his argument. Indeed, by the time he finishes he has reversed the relation between natural rights and natural law with which he began, and pointed toward an altogether different account of the natural foundation of politics than his transcendent natural law. Surely the most telling point is a simple, yet absolutely central, terminological matter: Locke affirms unequivocally that “every man has a property in his own person. This nobody has a right to, but himself” (II 27; cf. II 44). This assertion directly counters the ostensible foundation of the law of nature in God’s proprietorship, according to which God owns all human beings, and no one owns him or herself.17
It might appear that this shift makes little difference, for some of the key implications of self-ownership are indeed the same as, or parallel to, the implications of God’s proprietorship. In particular, the all-important denial that any human being belongs by nature to any others, including rulers, holds as well under the one claim as under the other. Filmer’s notion of the natural proprietorship of Adam and his heirs makes as little sense if each owns himself as if God owns all. The parallel implications of the two claims tempt the conclusion that Locke does not understand the two formulations as saying anything different from each other. The assertion of self-ownership might be understood as a restatement of the divine-ownership thesis from a slightly shifted point of view. If we look at human beings vis-à-vis God, they all belong to him; if we look at human beings vis-à-vis each other, they do not belong to any other, and therefore might be said to belong to themselves. This, in any case, is the solution various scholars have suggested in order to account for Locke’s surprising shift in terminology.18
Nonetheless, this proposed interpretation fails to make sense of many other features of Locke’s text that we must soon discuss, and it also does not work in its own terms. Let us posit a society in which slavery is legally recognized. All the slaves of a given slaveholder can be said to belong to that slaveholder, and as the property of that owner, they surely have limited rights vis-à-vis each other. It would be a violation of the slaveowner’s proprietary rights for one of his slaves (or any other person, for that matter) to murder or injure one of the other slaves. Each slave thus derives some measure of protection, or of secondary rights vis-à-vis other slaves, from the primary rights of the slaveowner. Nonetheless, it would be incorrect to say that the slaves are therefore self-owners. To be the property of A (in this case myself) involves more than having certain immunities from actions by B, but that is all that the claim of self-ownership could amount to in our hypothetical case. Since there is no relevant difference between our hypothesis and Locke’s postulation of God’s proprietorship, Locke’s shift in terminology must be either the product of very loose thinking or the expression of a shift in conception of some significance.
As was true in the Questions, Locke only gradually shifts his position. He presents the workmanship argument near the opening of his second chapter, and the self-ownership claim for the first time in the fifth chapter. Between the two come two very important discussions of topics highly relevant to the limits on natural law that Locke attaches to the God-as-owner thesis: the nature of the state of nature, with an emphasis on the role of the executive power of the law of nature, and slavery. The former bears directly on the natural law’s no-harm-to-others limitation on human freedom, the latter on the suicide prohibition. The meaning and significance of Locke’s shift to self-ownership from divine proprietorship can only be grasped via a close analysis of these two transitional arguments.
The law of nature mandates not harming others, and in Locke’s argument this is not left a mere moral desideratum; the law of nature also makes available a mechanism to make this command effective.19 “And that all men may be restrained from invading the rights of others, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is in that state, put into every man’s hands.” This so-called “executive power of the law of nature” necessarily follows, for without it that law “would, as all other laws that concern men in this world, be in vain” (II 7). Just as in the Questions, the sanctions for the law of nature constitute an essential part of it. In Two Treatises, however, these sanctions appear to shift entirely to the worldly sphere; the absence of rational knowledge of the soul’s immortality does not appear to vitiate the natural law in Two Treatises, as it did in the Questions and will do again in the Essay Concerning Human Understanding. Nonetheless, the reason for the introduction of the executive power of the law of nature appears to be quite similar in spirit to the discussion in the Questions. Recalling both Machiavelli and Grotius, Locke demands an effective law; yet he denies the law immanence. To be anything but “vain”—that is, without effect—it must depend upon external enforcement; human beings do not inherently or spontaneously obey it, at least not universally, or sufficiently.20
The law of nature necessarily implies the existence of some enforcement power; since all human beings are equal in the state of nature, it cannot belong to some and not others; therefore “every one must needs have a right to . . . prosecute that law” (II 7).21 The executive power fills out the endowment human beings have in the state of nature: to a set of natural law limits or duties is added a right or power to execute the law. This natural executive power turns out to be crucial to Locke’s purposes in Two Treatises. As he explains later, the executive power is “the true original of political power,” for which the second essay has been in search from the outset. “Where-ever therefore any number of men are so united in one society, as to quit every one his executive power of the law of nature, and to resign it to the publick, there and there only is a political, or civil society” (II 89).
As that which makes the natural moral order effective, the natural executive power would seem to perfect the state of nature: not only is there a moral command not to harm others, but there is a device to keep human beings obedient to the law. So far as the state of nature is not a state of war but a state of peace, the executive power would appear to make a major contribution. Despite the executive power’s intimate relation to the law of nature, and despite its indispensable function within his political philosophy, Locke suspects many will find it a “very strange doctrine,” a judgment in which he himself concurs (II 9, 13). He appears to mean that it is strange at least in the sense of being novel or unusual. Although Locke directs attention to the strangeness or novelty of his executive power of the law of nature, to many readers this appears just another place in which Locke remains in close contact with the precedent natural law tradition. Peter Laslett finds that “Locke’s doctrine on the point differs only by a twist of emphasis from that of Pufendorf and Cumberland.”22 Hans Aarsleff finds that on the natural executive power, “Hooker says the same as Locke.”23 Quentin Skinner thinks Jacques Almain developed “a theory which was later characterized by John Locke . . . as the ‘very strange doctrine’ that each individual in his proper political state must be pictured as the ‘executioner of the law of nature.’”24 At stake here, of course, is more than the petty question of Locke’s originality, for his signals about the natural executive power stand in marked contrast to the overall tone of the early parts of the Second Treatise, where Locke for the most part suggests that his position is anything but novel, claiming agreement with Hooker, and through Hooker with a long tradition of Christian natural law philosophy going back at least to Thomas Aquinas. Given Locke’s effort to establish continuity with the past, his insistence on “strangeness” requires some attention.
THOMIST NATURAL LAW AND THE NATURAL EXECUTIVE POWER
Hooker is the traditional natural law source to whom Locke most clearly directs our attention in Two Treatises, but Hooker’s position represents a development and modification of the Christian natural law teaching of Thomas Aquinas.25 Now, it is absolutely clear that Locke’s doctrine of the executive power of the law of nature is an innovation from the point of view of Thomas’s doctrine: private individuals, Thomas says, do not possess the power of punishment.26 The power to punish, according to Thomas, serves “the welfare of the community,” and therefore, he concludes, “it belongs to him alone who has charge of the community’s welfare.” If one were to ask where this power resides in the absence of civil authorities, that is, in a “state of nature,” Thomas would reply that there is no such thing: government is natural.27
The counter-Reformation natural lawyer Francisco Suárez developed the Thomist alternative to Locke’s natural executive power more fully. Following Thomas, Suárez affirms that “the punishment of malefactors” and “the infliction of punishment for injuries done to individuals” are powers that “transcend human authority as it exists in individual men.”28 This is not to say, however, that this power is not a human power; it, like the more general powers to make civil law and to choose a form of government, resides in the community as a whole, not in individuals. “Such power must dwell in men inasmuch as they are not naturally governed in a polity by the angels, nor directly by God Himself.”29 The legislative and executive powers are natural, according to Suárez, but only “in mankind viewed collectively; . . . the power resides not in individual men separately considered, nor in the mass or multitude of them collected, as it were, confusedly, in a disorderly manner, and without union of the members into one body; therefore such a political body must be constituted, before power of this sort is to be found in men.”30
The Thomist position, as explicated by Suárez, is therefore almost exactly the opposite of Locke’s. For Locke, human beings begin in a state of nature, that is, a state of no government, where each person possesses the executive power of the law of nature. That power is “the original of the legislative and executive Power of civil society,” brought into existence when the individual executive power is resigned to the community (II 87–89). Thomas and Suárez emphatically deny the derivation of the community’s power from the individual’s power: the community’s power derives from the very existence of the community. “Once this body has been constituted, however, the power in question exists in it”; political power “exists as a characteristic property resulting from such a mystical body.”31
The denial of an individual executive power, then, is the converse of the Thomistic affirmation of the naturalness of the political community under the natural law. That naturalness is meant in a dual sense, at least. Adapting Aristotle, the Thomists affirm that human beings are destined by nature for social and political life, because the dictates of the natural law—the natural virtues and vices, the natural perfections—include and require social existence, which in turn includes political life. Secondly, the Thomist position affirms the naturalness of the political, in the sense that it has a reality beyond the sum of its parts. The political community is a genuine whole, with characteristics and a genuine good not simply reducible to those of its component human parts. As Suárez says many times, the political community, although brought into being by the wills of its member human beings, forms “a mystical body” or “unity.” We may recall from an earlier discussion Suárez’s use of the analogy of marriage: although marriage is entered into consensually by the two parties, yet the marriage relationship, in particular “that the husband is the head of the wife,” follows from the nature of the marital unity, not from the wills of the parties or the consent of the wife to the power of the husband.32 The political, like the marital, is natural, and also has a nature.
By contrast, Locke treats the political as artificial and therefore lacking a nature in the full sense. Locke’s political philosophy—indeed, the social contract tradition as carried on even by present-day theorists like John Rawls and Robert Nozick—is purely reductionist, in that it looks at the political in terms of what rational human beings would construct, on the basis of the thought that the political must be reduced to the sum of the wills of its members. Locke’s executive power, in other words, is so much different from the Catholic Thomists’ conception that it signifies a shift in the very roots of the respective philosophies.33
Hooker develops and modifies the Thomist natural law in directions that are indeed reminiscent of Locke on the two central issues of the state of nature and the “strange” executive power of the law of nature. Hooker affirms a prepolitical condition suggestive of Locke’s state of nature, and along with that a power in each individual apparently similar to Locke’s executive power of the law of nature.
Hooker’s shifts in doctrine reflect new Reformation motifs in political thought. Thomas and Suárez had followed Aristotle rather than Augustine in finding the political so thoroughly natural that it would exist even in the “state of innocency.” Hooker, on the other hand, is much closer to the Augustinian position: “there being no impossibility in nature considered by itself, but that men might have lived without any public regiment. Howbeit, the corruption of our nature being presupposed, we may not deny but that the law of Nature doth now require of necessity some kind of regiment.” Hooker therefore speaks of “those times wherein there were no civil societies, . . . no manner of public regiment established.”34 He speaks of natural laws that “do bind men, absolutely even as they are men, although they have never any settled fellowship, never any solemn agreement amongst themselves.”35 Hooker’s statements are so unambiguous in affirming the derivation of the political from a prepolitical condition that Locke might well seem justified in referring to Hooker as authority for his own state of nature against those “that say, there were never any men in the State of Nature” (II 15).
Since Hooker puts some weight on the generation of civil society from a prepolitical condition, the question of the “original of political power” plausibly arises, and it is in this context that the Hookerian precedent for Locke’s executive power of the law of nature comes to view. According to Hooker,
In those times wherein there was as yet no manner of public regiment established . . . men always knew that when force and injury was offered they might be defenders of themselves; they knew that howsoever men may seek their own commodity, yet if this were done with injury unto others it was not to be suffered, but by all men and by all good means to be withstood.36
Where the Thomists denied the right of individuals to act against “malefactors” under all conditions, Hooker affirms such a right under certain conditions. He introduces this right as part of his minor modification of, or addition to, the Thomist teachings. As in Locke, this doctrine in Hooker forms part of the transition between the prepolitical and the political. In the condition without “public regiment,” Hooker argues,
to take away all such mutual grievances, injuries and wrongs, there was no way but only by growing into composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto; that unto whom they granted authority to rule and govern, by them the peace, tranquility, and happy estate of the rest might be procured.37
Although human beings could in principle guide their lives according to the law of nature alone, with no need of either human law or civil government in a state of innocence, “the corruption of human nature” through the Fall guarantees that life under the natural law alone leads to “mutual grievances, injuries, and wrongs,” to which the only solution is “public regiment.” However, a private solution, one in which individuals rather than government remedy those injuries and wrongs would be more natural, because “public regiment” means that some few are specially designated to rule, whereas in nature there is “no reason that one man should take upon him to be lord or judge over another.” Or, if there is such a reason in the “natural right in the noble, wise and virtuous, to govern,” the assertion of that right is not so universally accepted by fallen men as to lead to “peaceable contentment.”38 “Public regiment” requires an act of agreement, consent, or convention in order to designate who will have the power to make and execute human law; it is therefore less strictly natural than the situation in which all persons act to protect their own and others’ just right. The power to defend and withstand that Hooker affirms, then, stands intermediate between the prepolitical, fallen condition and civil government.
The individual power to defend and withstand is merely a moment in Hooker’s dialectical account, however. Although men “knew . . . they might be defenders of themselves,” they also “knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, inasmuch as every man is towards himself and them whom he greatly affecteth partial.”39 Hooker presents a more detailed and nuanced treatment of the Fall and its consequences than we find in Thomas or even in Suárez, and the power of self-defense is part of that. The difference again reflects the impact of the Reformation, in this case particularly the polemical context of Hooker’s discussion, the attack on the Puritans and their inherent suspicion of all human authority in favor of private judgment. The individual power to defend and withstand is Hooker’s concession, at the level of the natural law, to the Puritan preference for individual judgment. The intermediate position of the individual right to defend and withstand is intended to show the self-contradiction of the Puritan position.40 That power is required because of “nature corrupt,” but precisely the fallen nature that makes that power necessary makes it impossible as well. Thus the otherwise puzzling paradox in Hooker’s statement: on the one hand, “men always knew . . . they might be defenders of themselves,” but on the other hand, “they knew that no man might in reason take upon him to determine his own right.” What Hooker gives with one hand he takes away with the other. The right of individual judgment appears only long enough to show its self-contradictory, self-cancelling character, its inability to satisfy the natural law dictates of peace and justice.
That right of individual judgment most emphatically does not serve as the source for political authority itself. Hooker’s view on this is much the same as Suárez’s and Bellarmine’s. The power inheres in the political community; consent or convention does not bring the public power into existence, as in Locke, but rather agrees to its placement somewhere. “By the natural law . . . the lawful power of making laws to command whole politic societies of men belongeth . . . unto the same entire societies.”41 Or as he says in another place, “The case of man’s nature standing therefore as it doth, some kind of regiment the Law of Nature doth require; yet the kinds thereof being many, Nature tieth not to anyone, but leaveth the choice as a thing arbitrary.”42 The collectivity, or the corporation, is the original home and source of political power, just as in Thomas and Suárez, and not the individual, as in Locke.
Hooker’s limited and self-cancelling right of individual judgment differs from Locke’s executive power of the law of nature in at least three ways. First, Hooker’s affirmation of this right is extraordinarily equivocal; Locke’s natural executive power, on the other hand, is entirely unequivocal. Where Hooker says “no man might in reason . . . determine his own right,” Locke contends quite the contrary: so long as there is no one else to do so, a man has the right under the law of nature and reason to do just that. Hooker does not merely say what Locke admits, that such individual judgment will not work well; for Hooker the right of individual judgment is cancelled whether there is or is not “a common judge,” while for Locke only the common judge cancels the power.
Second, Hooker’s analog to the executive power does not have the same central function in his theory that Locke’s does, for he follows the Thomist tradition and derives political authority directly from the law of nature and the inherent power of the community, and not from the prepolitical powers of the individuals who compose political society.
Finally, for Locke the power in question is that without which the law of nature itself would be “in vain.”43 Hooker disagrees. Hooker’s treatment of the sanctions that make the law of nature effective follows by and large the outlines of the traditional Thomist position. The “rewards and punishment” attached to the laws of reason are two- or even three-fold in character.
Now the due observation of this Law which Reason teacheth us cannot but be effectual unto their great good that do serve the same. For we see the whole world and each part thereof so compacted, that as long as each thing performeth only that work which is natural unto it, it thereby preserveth other things and also itself.
The natural law carries its own reward and punishment with it. A being that keeps the law is operating well and properly, and therefore thrives. Conversely, failure to keep the law brings its own punishment, the frustration of the natural operation of the being and its consequent discontent.44
But Hooker’s law of nature is a law in the full sense. Human beings are not merely benefited by keeping the law, they are obliged to do so and held blamable if they fail to do so. Thus there are other sanctions to the law of nature besides the “felicity” of a being working in its proper manner. Quoting Paul (Romans 2:9), Hooker looks to that “tribulation and anguish unto every soul that doeth evil” through “transgressing the Law of Nature.”45 That is, he looks to conscience, and behind that the ultimate sanction of the divine judge:
Sith every man’s heart and conscience doth in good or evil, even secretely committed and known to none but itself, either like or disallow itself, and accordingly either rejoice, very nature exulting (as it were) in certain hope of reward, or else grieve (as it were) in a sense of future punishment; neither of which can in this case be looked for from any other, saving only from Him who discerneth and judgeth the very secrets of all hearts; therefore He is the only rewarder and revenger of all such actions; although not of such actions only, but of all whereby the law of Nature is broken whereof Himself is author.46
Hooker most emphatically differs from both the Locke of Two Treatises and the Locke of the Questions. The law of nature is not “in vain,” but has the support of a number of natural and supernatural sanctions. Not coincidentally, those sanctions are the very forces Locke dismisses in the Questions.
Hooker is only apparently a forerunner of Locke on the natural executive power. Locke’s “strange” doctrine reveals the same chasm that separates his overall natural law theory from Hooker’s and from the Catholic Thomists’. Given Locke’s thoroughgoing break with Thomistic philosophy in the Questions and in the Essay, it should be no great surprise that this central doctrine of Two Treatises bespeaks that same break.
As with the Catholic Thomists, the essential difference between Locke and Hooker that manifests itself in Locke’s “strange” natural executive power concerns the state of nature. Despite Hooker’s recognition of a prepolitical condition, which Locke attempts to assimilate to his own state of nature, his understanding of the prepolitical condition is very distant from Locke’s state of nature.
Hooker actually has two conceptually distinct senses of a prepolitical state. The first involves only a mere shade of difference with the Thomists. Like them, Hooker sets his political teaching within the context of a full-blown teleology. Nature is most revealed in the end, or perfection, of a being rather than in its origin.
God alone excepted, who actually and everlastingly is whatsoever he may be . . . all other things besides are somewhat in possibility, which as yet they are not in act. And further cause there is in things an appetite or desire, whereby they incline to something which they may be; and when they are it, they shall be perfecter than now they are.47
For Hooker, as for Thomas, those same “natural inclinations” that Locke had dismissed in the Questions point to the “perfecter” or truly natural state of a being. Following Aristotle, Hooker applies this scheme to the origin of political society: the naturalness of the political does not imply its temporal primacy. Thomas, Suárez, and Hooker all see the political as prior in nature, but posterior in time, to the family. Thus Hooker’s time “before civil society” is not Locke’s equal and independent state of nature. “To fathers within their private families nature hath given a supreme power; for which cause we see throughout the world even from the foundation-thereof, all men have ever been taken as lords and lawful kings in their own houses.”48 While Locke adopts some of this, he denies the central claim—that nature has given the fathers a supreme power (e.g., II 64, 75). The beginning for Hooker is surely not an individualistic condition of “no-rule” but a state of organized and naturally authorized rule in the fathers. Hooker no doubt comes uncomfortably close to Filmer in passages such as this, and that may be one reason why Locke so distorts Hooker’s genuine position.49
And distort him he does, for it is this Aristotelian sense of the prepolitical that Locke, misleadingly, quotes into his text; Hooker’s once-existing prepolitical condition is not in any sense natural, nor could it be said to be one in which “all men are naturally” (II 15). Locke’s fairly casual extension of Hooker in fact transforms Hooker’s fairly standard restatement of the Aristotelian derivation of the political from the subpolitical into his own very different state of nature.50
The second sense in which Hooker speaks of a prepolitical state deviates further from the Thomist doctrine. More strongly than the Thomists, and certainly more than Aristotle, Hooker insists that nature be taken in a double sense—nature before and after the Fall. Government is natural and necessary to the perfecting of a being with a fallen nature, but it is not natural to humanity prior to the Fall. Hooker’s deviation from Thomas, so far as he does deviate, is partly based on his Protestant echoes of Augustinianism and partly based on an effort to be more consistent in his adherence to the Thomist position than Thomas himself was. If there exists a natural law, of which human beings have knowledge and the ability and will to obey, then in a state of innocence the natural law by itself should be sufficient for the ordering of human life. Thus, concludes Hooker, there is “no impossibility in nature considered by itself but that men might have lived without any public regiment.” Only “the corruption of our nature,” which affects both the ability to know the whole of the law of nature and the ability to obey that law, makes “public regiment” and human law necessary as supplements to the natural law. Hooker reconciles his claim that the law of nature does not require “regiment” with the claim that it does by introducing a distinction between “primary and secondary laws; the one grounded upon sincere, the other built upon depraved nature.”51 Political society is natural under the one, even if not under the other. For Hooker, therefore, there is no state of nature.
Locke’s executive power of the law of nature is an emblem within his philosophy of his rejection of the central premise of the Thomist political philosophy—the naturalness of the political, and thus the direct provision for political authority by nature or natural law. That is why it is “strange” relative to the theories of all the Thomists, including Hooker. Although Locke does not spell things out in the same detail as in the Questions, the overall shape of his argument is almost the same. The naturalness of political authority for the Thomists reflects the same reliance on the natural inclinations to indicate the mandate of nature—in this case, political life—that Locke rejected in the Questions.
Locke’s transcendent natural law does not rely on natural inclinations in order to establish nature’s mandate. Locke doubts that natural inclinations account for political life for at the center of political life is coercion—the power of punishment (II 3). Political life must somehow go against the grain of human beings if violence is its defining character. The natural law must be independent of the natural inclinations for the same sort of reasons as in the Questions: the natural inclinations left to themselves would overturn order and justice.
The executive power of the law of nature is the link between Locke’s nonimmanent, nonpolitical natural law and political society. The executive power of the law of nature moderates what might otherwise appear to be a radical break by Locke with traditional natural law—the positing of a state of nature. The state of nature was no part of previous natural law philosophy, because natural law mandated and provided for political life. The moderating role of the executive power of the law of nature is visible if we compare Hobbes and Locke on the state of nature. In Hobbes the assertion of a state of nature is accompanied by a rejection of the law of nature altogether. “These dictates of reason, men use to call by the name of laws; but improperly; for they are but conclusions, or theorems concerning what conduceth to the conservation and defence of themselves.”52 Locke’s transcendent natural law in Two Treatises is emphatically not that—it is the expression of will of the maker and owner of nature, the divine law-giver. The executive power of the law of nature, then, allows Locke to affirm both the state of nature and the natural law, albeit quite differently from the Thomists. The executive power is an innovation precisely because the law of nature and the state of nature it accompanies are innovations also.
GROTIAN NATURAL LAW AND THE NATURAL EXECUTIVE POWER
Grotius was no Thomist, and therefore it is not strange that a much closer parallel to Locke’s natural executive power appears to occur in his De Jure. Grotius goes much further even than Hooker in affirming that “punishment . . . may be exacted by anyone at all according to the law of nature.”53 While Grotius agrees with Hooker in emphasizing the difficulties partiality for self makes for such a power, he does not go as far as Hooker and find that this difficulty cancels the power in question, nor does he believe the existence of civil authorities altogether supercedes that power.54
Nonetheless, in the key respects Grotius’s position is far closer to Hooker or Suárez than to Locke. Again, given the depths of Locke’s divergence from the Grotian natural law philosophy, this is not a surprising conclusion. Yet the surface similarities must have been among the factors allowing Locke to ride in on Grotius’s popularity among the Whigs.
Like Hooker, Grotius cloaks his doctrine in a series of qualifications that Locke does not accept. Grotius is curiously of two minds as to the location of the right of punishment. He often says the right belongs to all, but immediately qualifies that to “anyone of sound judgment who is not subject to vices of the same kind or of equal seriousness,” or to “the good man” or “the wise man.”55 His most general statement on the right to punishment holds that “reason declares that the criminal may be punished. It does not, however, declare who ought to inflict the punishment, excepting so far as this, that nature makes it clear enough that it is most suitable that punishment be inflicted by one who is superior.”56 Locke neither endorses the idea that nature or reason leaves unsettled the holder of the power (he unhesitatingly affirms that it belongs equally to everyone), nor does he equivocate in the slightest between “everyone,” on the one hand, and “the good” or “the wise” or “the superior,” on the other.
Moreover, Grotius agrees with Hooker that the law of nature is not “in vain” without the natural power of punishment. “Nevertheless, law, even without a sanction, is not wholly void of effect. For justice brings peace of conscience, while injustice causes torments and anguish. . . . But, most important of all, in God injustice finds an enemy, justice a protector. He reserves His judgments for the life after this, yet in such a way that He often causes their effects to become manifest even in this life.”57 Like the Thomists, Grotius sees the content of the law of nature in (some of) the natural inclinations, and therefore the frustration or satisfaction of these also serves as a “sanction” for the law.58 Perhaps most significant, however, he does not understand sanction to be an essential or defining characteristic of law, as Locke does.
For Locke, the executive power of the law of nature functions as the source of the political power that rulers hold in trust; for Grotius it has no such task:
For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now after the organization of states and courts of law is in the hands of the highest authorities, not, properly speaking, in so far as they rule over others but in so far as they are themselves subject to no one. For subjection has taken this right away from others.59
Grotius seems to agree with Locke, as he must, that subjection to government requires the surrender of the individual power to punish violations of the law of nature—generally speaking, at least—but it is not the source of political authority. The source of political authority is rather the agreement of subjection supported by natural law. In this, Grotius differs from the Thomists as well; the law of nature that provides for social life gives a weight to human agreement the Thomists do not recognize.
Grotius’s doctrine differs so much from Locke’s because it fulfills a much different function within his theory. He posits a natural law power to punish violations of the law of nature in order to complete his teaching on the law of war and peace. The pre-Grotians, like Suárez, had managed to develop natural law doctrines of the just war, but they did so on the basis of conceiving political society as a “mystical body.” Grotius rejected that part of his predecessors’ doctrine, and thus had to find an alternative source of the power a state might rightfully use in warfare against other states, as well as the natural standards that govern that use. The natural power of punishment supplied Grotius’s alternative to the “mystical body” as the source of the power to wage war. It did not supply the source of domestic political power, however.
This shift by Grotius had practical consequences for the just conduct of international relations. Those natural lawyers who deny a natural power of punishment, he said, also deny “that war may be waged upon those who sin against nature,” and rather “seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked. For they claim that the power of punishing is the proper effect of civil jurisdiction [only,] while we hold that it is also derived from the law of nature.”60 For Grotius, the naturally derived power of punishment supplies ground for a somewhat more muscular theory of just war than he found in his predecessors.
Kings, and those who possess rights equal to kings, have the right to impose punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any person whatsoever.61
Grotius would be more interventionist than his Thomist forerunners, in that he does not limit rightful use of force to defensive or restorative actions but also admits modest efforts to enforce the law of nature on behalf of third parties. The vehicle for this, of course, is the natural power of punishment.
The implicit reasoning that leads Grotius to modify the traditional doctrine in the direction of the natural power of punishment seems to be the following: The law of nature is a law for a naturally sociable, rational being, aiming at the just social life of that being. Since wrongs may be committed, the rightful use of force must be included as valid under the law of nature.62 Rightful force cannot be limited to self-defense or to the restoration of one’s own, because the root of the law is human rational sociability. One is justly concerned not only with injuries to oneself, but also with injuries to others. Thus, all have a power to use force rightfully in order to punish those who harm others in contravention of the law’s dictate of human sociability and peace. However, people being what they are, the claim of protecting someone else’s right is often merely a pretense disguising a far more selfish intent; thus one of Grotius’s main themes becomes the distinction between a truly just cause of war and a mere pretense of a cause—a theme that Locke does not pursue. The abuses of the power of punishment are behind Grotius’s odd vacillation regarding the location of that power as well. The “good,” or the “wise,” or the “superior” are those who will prosecute the natural power of punishment so as to keep it in harmony with its end, social peace.
Locke’s differences with Grotius can be understood in terms of themes we have already explored in the confrontation between them. Of all the differences, probably the most significant is the tight link Locke forges between his executive power and the original of political authority. Grotius draws no such connection between his power of punishment and the foundation of political authority in the pact of subjection. On the one hand, this powerful link in Locke stands as the very feature of his theory that forefends any possible absolutism; the Grotian grounding of political authority in compact has no such result. Locke’s executive power finds its limits in the same place it finds its authorization, in the transcendent natural law. Political power has grounding in the executive power, but because of the natural law’s no-harm principle, the executive power does not contain a quantum of power sufficient to authorize absolutism.
Although Grotius rejects the Thomistic notion of the “mystical body” in which political power directly inheres under natural law, nonetheless the difference between him and Locke also turns on the status of the state of nature. As we have already noticed, Grotius never affirms a state of nature in his own name, and when confronted by one in Hobbes’s work turns explicitly against it. For Grotius, the obligations upon which political life is built exist directly under the law of nature, in the social duties that, for example, ground the obligation of compacts. Although human will, as we have seen, makes an enormous contribution to the Grotian theory of the constitution of political authority—too much, perhaps, from Locke’s point of view—yet prior natural law obligations grounded in sociability in turn ground all human agreement. For Locke, human beings are driven into society or government by the “inconveniences” of the state of nature, but this neither requires nor implies any fundamental sociability within human nature or the natural law. As Locke insists, political society is constituted entirely in order to secure the property (in the broad sense) of each of the contractors individually.
Locke’s executive power of the law of nature is “strange” relative to the precedent modes of natural law thinking because it is attached to the state of nature and the concomitant denial of the naturalness of political life—itself a “strange” doctrine, as Locke testifies by his great efforts to assure readers that there was or is such a state, and to distinguish his version of that state from the only precedent for it in Hobbes (II 15, 19). Not only is Locke’s state of nature more peaceful than Hobbes’s, but it is governed by Locke’s transcendent natural law. As in the Questions, Locke’s new type of natural law keeps his otherwise novel doctrine in touch with the tradition, for novel as it is, it surely has much more in common with the old natural law than Hobbes’s so-called natural law.
Once the state of nature finds acceptance within political philosophy, that which seemed to differentiate Locke most clearly from his predecessors disappears. Pufendorf, for example, who has been heralded as the propounder of something very like Locke’s executive power of the law of nature, accepts the state of nature in his effort to synthesize Grotius and Hobbes. Pufendorf’s position still differs a great deal from Locke’s, but it will be best to return to Pufendorf only after we have seen what the executive power of the law of nature does to Locke’s transcendent natural law.
NATURAL RIGHT AND THE NATURAL EXECUTIVE POWER
Locke’s executive power of the law of nature is “strange” because it holds together two things, the law of nature and the state of nature, that previous political philosophy, as witnessed by the Thomists and Grotius, on one side, and Hobbes, on the other, had held apart. The executive power of the law of nature not merely coexists with the state of nature but appears to perfect it, by supplying a device for making the natural law effective in the state of nature. On the other hand, the executive power of the law of nature represents a break in the character of the state of nature. “And thus in the state of nature, one man comes by a power over another” (II 8). Contrary to the initial impression that in the natural state no person holds rightful power over another, under the natural executive power some may do so. To hold rightful natural power over another as authorized by the executive power of the law of nature means, above all, to possess the right to apply force—that is, the right to harm others.63 Contrary to the initial and unequivocal command of the law of nature that “no one ought to harm another in his life, health, liberty or possessions,” the law of nature authorizes this exception: To “do justice on an offender . . . one man may lawfully do harm to another” (II 6, 8). Locke concedes not merely that there will be violence in the state of nature, but that at least some of it will be rightful, authorized by the law of nature itself, or by “reason, which is that law” (II 6).
The executive power may overcome what had first appeared to be categorical natural law limitations, yet Locke very carefully delimits the scope of this new power.64 It is by no means an “absolute or arbitrary power.” The power extends only “to retribute” to the offender, “so far as calm reason and conscience dictates, what is proportionate to his transgression, which is so much as may serve for reparation and restraint,” which constitute “the only reason why one man may lawfully do harm to another” (II 8). Yet in the very same section Locke restates his point in much harsher terms: “Every man . . . may bring such evil on any one, who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief” (II 8). To reparation and restraint, Locke adds deterrence as a legitimate object of use of force under the law of nature. Locke hesitated to mention deterrence at first. Although deterrence consists well enough with the underlying rationale for the existence of the natural executive power—to make the law of nature effective—it does not comport as well with the main limitation Locke had first asserted, proportionality. A theory of punishment limited to reparation and restraint can more readily remain within the bounds defined by proportionality than one open to deterrence.
The introduction of deterrence in effect repeals the proportionality requirement as initially stated and greatly expands the scope of lawful use of force in the state of nature. The severity of natural law punishment becomes visible only gradually in the course of Locke’s argument: although he mentions in passing in section 8 that “every man . . . may restrain, or where it is necessary, destroy things noxious to them,” it takes him a discussion spread out over two chapters to bring out the full implications of his deterrence doctrine. For one thing, “every man in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury . . . and also to secure men” against very vicious criminals (II 11). The natural executive power authorizes not merely the use of force, but great force. The force allowed in the state of nature is thus far greater than the force allowed in antediluvian times in Genesis.65 The teaching of reason goes well beyond the teaching of revelation.
The lawfulness of the death penalty for murder coheres with Locke’s initial emphasis on proportionality, but his extension of that penalty to “lesser breaches” evidences the difference the introduction of deterrence makes. “Each transgression may be punished to the degree and with so much severity as will suffice to make it an ill bargain to the offender . . . and terrifie others from doing the like” (II 12). Locke’s deterrence principle would appear to overturn proportionality almost entirely, for under the law of nature one could inflict any level of punishment one wanted, as long as some lesser penalty had failed to deter.
To the deterrence doctrine, moreover, Locke adds a new principle, the “enmity” doctrine, that extends the executive power ever further. “It being reasonable and just I should have a right to destroy that which threatens me with destruction . . . one may destroy a man who makes war upon him, or has discovered an enmity to his being” (II 16). Clearly, this covers attempted murders—one need not wait until the fatal blow has been struck to take note of “enmity” of this sort—but it also covers those who attempt to interfere with one’s liberty: “Reason bids me to look on him as an enemy to my preservation, who would take away that freedom which is the fence to it.” Those who attempt to “take away the freedom . . . must necessarily be supposed to have a design to take away everything else” (II 17).
Locke propounds a doctrine of “constructive enmity”; it is “lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life” (II 18). Both the offering of force and interference with the means of preservation are evidence of the sort of enmity that might in principle threaten one’s preservation. Victims or potential victims are given great leeway in determining whether and when another has enmity toward them. The logic of the doctrine of enmity allows the application of the most extreme form of coercion against persons who directly challenge one’s preservation. Moreover, the right to execute the law of nature operates not merely on actual crimes committed but on crimes planned or intended, of which the intended victim appears to be the sole judge.66 Locke concedes that under such circumstances “self-love will make men partial to themselves and their friends,” with the result that “ill nature, passion and revenge will carry them too far in punishing others” (II 13). Contributing to the resulting “confusion and disorder” will be a factor we have not yet taken sufficient notice of: not only actual or potential victims have the right to execute the law of nature; everybody does. They may do so not only on their own behalf, but on behalf of the law of nature itself, or of “preserving all mankind” (II 11). Any person may rightly “punish” any offender or potential offender. Predictably, this will produce “confusion and disorder.” Locke describes this not as wrong or unlawful, but rather as “inconvenient” (II 13). The violent and unacceptable character of the state of nature follows as much from the use of rightful force as from the use of unlawful force. Indeed, under the conditions of the state of nature, the difference between the two becomes exceedingly difficult to ascertain, for the law of nature in effect sanctions preemptive strikes against those in whom one has “discovered enmity.”
By the time Locke completes his early discussion of the executive power of the law of nature it is clear that the “no-harm principle” is, to an important degree, inoperative. The law of nature, via the natural executive power, validates an extensive right to harm others. Contrary to the initial impression, there will be much violence in the state of nature, much, perhaps most, of it morally allowable under the law of nature. Given all the force used in the state of nature, it is not so clear how different Locke’s version of the natural condition is from Hobbes’s. As Robert Goldwin has shown, careful attention to Locke’s efforts to distinguish his state of nature from Hobbes’s reveals that Locke is not in fact claiming his state of nature to be a state of peace, the opposite of Hobbes’s state of war. The state of nature and the state of war “are not to be confounded,” not because peace prevails in Locke’s nature, but because “their difference lies in the fact that they are not things of the same kind.” The defining characteristic of the state of nature is “no common superior”; the defining characteristic of the state of war is “force without right” (II 19). The state of nature is thus a condition in which, in principle, there can be either a state of peace or a state of war; the state of war, obversely, can exist either in nature or in civil society. As Goldwin concludes, “However clearly we have distinguished the state of nature and the state of war one from another [conceptually,] we have not at all disposed of the essential question: will there be war in the state of nature?”67 Locke’s answer, we see, is yes. Indeed, because “civil government is the proper remedy for the inconveniences of the state of nature” (these “inconveniences” being the tendency to the use of force), it follows that the state of nature is much more likely to be marked by use of force than the civil state. So far as peace exists somewhere, it is in civil society. “Civil society [is] a state of peace . . . from [which] the state of war is excluded by the umpirage they have provided in their legislature, for the ending of all differences that may arise amongst them” (II 212). No “umpirage,” no peace. The state of nature lacks umpirage and therefore lacks peace.
Locke’s executive power of the law of nature at first appears to be the completion and the perfection of the natural human endowment, for it is the mechanism God has supplied to make the moral law effective. Yet this mechanism provides a far from adequate system. Much better would it have been had God, or nature, supplied government more directly. Despite the law of nature, the natural endowment is very defective. In a word, Locke’s presentation of the executive power of the law of nature undermines the premise-in-chief of his argument for the transcendent natural law early in Two Treatises, the provident Creator, and it undermines the first command of the transcendent law of nature, the no-harm principle. Under the law of nature all may harm the guilty, the threatening, or the presumed threatening. Under the law of nature the guilty and the innocent are difficult to distinguish. Under its executive power the law of nature authorizes something very close to the war of all against all.68
Grotius hedges his natural law power of punishment with equivocations and restrictions that Locke in the end does not, precisely because his law of nature mandates social peace. Locke is not tempted, for example, to restrict the natural executive power to the “superior,” because he fully accepts the fact that the executive power cannot be limited to “good means” or “good men”; for Locke it has a naturally expansive character Grotius’s designedly lacks. Indeed, Locke’s ever-encroaching executive power stands as much as anything as a critique of Grotius on just this count. Locke’s analysis points to the highly unsatisfactory status of Grotius’s position as intermediate between Hooker’s and Locke’s own. Hooker posited a natural power to punish as a moment in an analysis going to show the simple unviability of that power, the need to cancel it. Locke insists on maintaining the power, but accepts the consequences: the means of enforcing the law of nature becomes itself a great threat to the peace that the law of nature presumably mandates. Grotius notices less than either Locke or Hooker the destructive effects of the natural power to punish. Because of his deep commitment to a voluntarist origination of political society, he is foreclosed from following Hooker into cancelling the power of punishment; because of his deep commitment to the natural law as effecting peaceful social life, he is foreclosed from following Locke into fully recognizing the anarchic, or rather bellicose, consequences of the “executive power of the law of nature.”
Once the full terror of Locke’s executive power comes out, parallels to Pufendorf’s position appear. In his effort to synthesize Grotius and Hobbes, Pufendorf moved away from Grotius in ways that definitely remind of Locke. Grotius, for example, insisted on proportionality between crime and penalty. “No one is to be punished beyond desert.” In general, Grotius emphasized moderation and limitation in punishment.69 Much more like Locke, however, Pufendorf admits the right “of exercising force against [a violator] without stint or limit. And this not merely if he attacks my life, but even if he should knowingly and willingly direct some lesser evil against me.”70
Yet at the very points where Pufendorf appears most to draw close to Locke, a very great gap between them persists: for Pufendorf, proportionality is not necessary because proportionality “has place only in tribunals where punishments are inflicted by superiors.” The premise for Pufendorf’s discussion, as for Locke’s (although not for Grotius’s), is a state of nature. “All this is in place between those who do not recognize a common judge among men, whether they be individual moral persons, or composites, in other words, societies.”71 Applications of force against malefactors in the state of nature, according to Pufendorf, “do not properly have the character of punishment.” The power Pufendorf speaks of, therefore, is not what Locke calls the executive power of the law of nature. Explicitly rejecting Grotius’s view, and implicitly Locke’s, Pufendorf claims to be “entirely convinced that the power to exact penalties is part of sovereignty [alone,] and so no one can impose upon another a penalty, properly speaking, unless he have sovereignty over him.” Pufendorf expressly grounds his denial of a right of punishment on the thought that “men have need of sovereignty, but not merely anybody can and should exercise it over any and everyone else.”72
The power Pufendorf speaks of is rather the direct exercise of a natural law power under which “any one whatsoever should protect his own life and limbs, as far as he can, and save himself, and what is his own.”73 This power is not a power to enforce the natural law, but is the embodiment within Pufendorf’s system of the Hobbesian right of nature. Locke’s explicit law of nature, however, starts out by striking off in a very different direction from Hobbes’s; it does not make room directly, as Pufendorf’s does, for the Hobbesian right of nature, yet, starting off with a natural law apparently closed to the Hobbesian right of nature, it ends up embodying something very like it in the guise of the executive power of the law of nature.74 The comparison to Pufendorf is thus especially revealing of the character of Locke’s natural law.
The executive power of the law of nature is a step along the way in the movement of Locke’s argument from the initial affirmation of divine proprietorship to the later restatement in terms of self-ownership. As Locke first presents the moral mandate of nature, it stands at the farthest extreme from what Hobbes presented as the right of nature, and thus even from Pufendorf’s first law of nature, adaptated from Hobbes. According to Hobbes, human beings have a right, that is, a moral liberty, to do what is necessary for their preservation even if that means harming others. According to Locke, human beings have a moral duty to start with: a duty to forbear from harming others. But his doctrine of the executive power of the law of nature emphasizes more and more their right to harm others, whenever and to the degree they judge it appropriate for preserving themselves and others. The executive power of the law of nature makes Locke’s law of nature nearly indistinguishable from Hobbes’s right of nature.
Does the discussion of the natural executive power then provide the grounds for understanding Locke’s shift from divine to self-ownership? In two important ways it helps bring out the reason for and implications of that shift. In the first place, as we have already noted, the development of the character of the state of nature via the explication of the executive power works to undercut the central premise of the divine-ownership argument, a benevolent and provident God. In this respect it parallels Locke’s Cartesian argument on God and mortality in the Questions.
The emergence of a right of preservation and the executive power of the law of nature is not, however, thoroughly inconsistent with the divine-workmanship argument. From God’s ownership derives a duty of preservation, and from that, presumably, a right of preservation. Such a right of self-preservation is, of course, also consistent with self-ownership. On the whole, in fact, it is more consistent with self-ownership than with divine ownership as Locke develops it in chapters 2 and 3 of the Second Treatise. Divine ownership would produce a doctrine far more like those of Hooker or Grotius, for the duty or right to self-preservation is always joined with an equally binding duty to others. In Hooker, that conjunction implies the cancellation of any individual right to punish others under the law of nature; in Grotius it produces a consistently moderated doctrine with a far greater insistence on proportionality and restraint than we find in Locke. Locke underlines for his readers how much the right (or duty) to self swallows up the duties to others by initially stating the latter in the very uncompromising terms of the prohibition of all harm to others. Locke derives a right to harm others via what may be perfectly legitimate inferences from the workmanship premises, but he allows the legitimacy of the right to harm others to overwhelm what Hooker and Grotius more firmly retain as limitations on that right. In this sense, Locke’s argument is more consistent with self-ownership.
Locke’s odd procedure may be understood as follows: He does not move right away to settle the controversy between the two theses, divine or self-ownership. He begins instead with the more conservative, more traditional hypothesis: human beings live in a created whole, governed by a benevolent and provident deity; they are themselves creatures, subject to their Creator. From this hypothesis Locke develops the various forms of the “no-harm” principle. Locke shows that these various principles are in greater conflict than they might at first appear to be. Locke shows that under natural conditions, that is, under conditions of no public authority, permission to harm will overwhelm the prohibition against harm, for human beings are much given to being partial to themselves, a partiality the law of nature cannot remedy under the terms of the state of nature. Thus, even if we begin from the very different premises and implications of divine ownership, we end up with the same, or nearly the same, results as if we began directly with the competing thesis of self-ownership.
If we take the law of nature seriously as a law, Locke suggests, we arrive via the natural executive power at something quite different from what the law of nature had been understood to be. The executive power is both a necessary implication of the transcendent natural law and the executioner of it. Despite his initial derivation of it from a version of the traditional view, the natural executive power stands as an emblem and offspring of Locke’s break with the ontology, metaphysics, and theology that animated the tradition’s understanding of the status of the political.
To underscore the implications of the undermining of the transcendent natural law by the natural executive power, Locke in a later restatement retracts his initial specification that the state of nature has a law of nature to govern it. “In the state of nature there wants an establish’d, settled, known law, received and allowed by common consent to be the standard of right and wrong.” Just as in the Questions, the transcendent natural law stands so far from human beings that they have no knowledge of it. “For though the law of nature be plain and intelligible to all rational creatures”—we’ve heard that before—“yet men [are] biassed by their interest as well as ignorant for want of study of it.” In the state of nature, human beings do not know the law of nature. They therefore cannot understand their actions vis-à-vis each other as efforts to execute a law of which they know nothing. Their actions can be understood, however, as based on “a strong desire of self-preservation the . . . planted in them, as in all other animals” (I 86). Just as in the Questions, the transcendent natural law gives way to a natural right of preservation.
TRANSCENDENT NATURAL LAW: SUICIDE
Locke’s transcendent natural law in Two Treatises begins with the thought of divine ownership and derives from that a series of natural law limitations or duties that apply to human beings even in the state of “perfect liberty” that is the state of nature. The chief limitations are a series of variations on the theme of no-harm: under the law of nature we may not harm ourselves or others, directly or indirectly. The discussion of the executive power of the law of nature shows how little the no-harm-to-others principle can be honored under natural conditions. That result accords well with Locke’s stunning reversal of claims about ownership: human beings own their own persons, he later says. More than any other aspect of Locke’s political philosophy, that reversal calls for thoughtful understanding.
The next stage of Locke’s argument, his discussion of slavery, bears directly on the divine vs. self ownership issue; indeed, in this place he settles the question definitively in favor of self-ownership. Slavery would appear to be contrary to both ownership theses, for slavery involves the ownership of some human beings by others. Slavery can become a rightful condition only because human beings can “forfeit” their “preservation and life together” by violating the law of nature, that is, by threatening the life, liberty, or property of another (II 23). The person who possesses the right to execute the law of nature against the offender—actually, anyone—has a right to mitigate the full punishment that could be inflicted and take the malefactor’s liberty rather than his or her life. Ruth Grant thus observes that “Locke’s discussion of slavery in chapter 4 is the culmination of the discussion of the natural executive power.”75
Slavery, the first of the five human relationships Locke presents in the series of chapters following the adumbration of the baseline state of nature, is a rightful relation in a sense, but not wholly. As Locke insists, it is the only one of the five that has nothing of consent mixed in with it; indeed, human beings do not have the power to constitute themselves slaves even if they so desire. “For a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases” (II 23). Locke differs from Filmer, then, in denying that human beings are, in effect, born slaves; he differs from Grotius in denying that human beings can make themselves slaves.
Whatever right there is in slavery comes wholly from the right of the master; since the master has the right to kill the slave, he has the lesser right to enslave him as well. Yet the right is, in important respects, very imperfect. As Locke says, “Slavery . . . is nothing else, but the state of war between a lawful conqueror and a captive” (II 24). Yet Locke has defined a state of war as “force without right,” although he also defines it as “force or declared design of force upon the person of another where there is no common superior on earth to appeal to for relief.” Locke systematically vacillates on the rightfulness of the force that constitutes the state of war: either it is force without right, or it is force of any sort in the state of nature. Locke’s presentation of the executive power of the law of nature points to the grounds for that vacillation. In a state of nature, it is operationally impossible to distinguish between rightful and unrightful force. Only in civil society, with its common judge and standing rules, does it become feasible to distinguish rightful from wrongful use of force.
The force with right/without right exercised by the master over the slave does not bring the state of war between them to a conclusion. Only a compact can do that, and a compact would at the same time undo the masterslave relation (II 24). In a state of war “there is no appeal but to Heaven,” which in Locke’s lexicon means an appeal to force (II 21). The point of Locke’s insistence on the state of slavery as a state of war is that even if the origin of the master’s power lies in a rightful use of force, the slave lies under no obligation to accept the authority of the master. Locke’s understanding of slavery, as of many other matters, is very close to Pufendorf’s, whose parallel discussion makes more explicit some of Locke’s main points: “Out of an antecedent war arises the society of slave-masters, that is to say, when I grant life to the man I could licitly have slain.” The master-slave relation has no basis in compact and “since passage is made from war to peace only by means of compacts, a state of war is understood to be still enduring between us.” That means “there is no obligation on [the slave] to serve.” A slave may rightly “not merely run away, but even, when the chance has come to him, treat his captor as an enemy.”76 The relation of slavery, then, is juridically asymmetrical and unstable. The master’s right generates no corresponding obligation in the slave.
Obligation derives from consent, and Locke firmly teaches that no one can consent to slavery. His reasoning would seem to support the divine-ownership premise, for we cannot give a power over our lives to another that we do not ourselves possess, a claim Locke traces directly to God’s ownership. And yet in the very section in which Locke denies the possibility of consent-based slavery, he rejects the premise from which this argument has proceeded. “Whenever [a slave] finds the hardship of his slavery outweighs the value of his life,” Locke says, “‘tis in his power, by resisting the will of his master, to draw on himself the death he desires” (II 23). On this passage, Locke’s editor, Peter Laslett, comments that “Locke seems to contradict himself . . . by justifying indirect suicide.”77
Admitting indirect suicide, directly contrary to the suicide taboo derived from the premise of divine ownership, is exactly what Locke does here. At least three different ways of understanding Locke’s surprising move suggest themselves. The first, and I think correct, way is that Locke is here retracting the no-harm-to-self consequence of the divine-ownership thesis and substituting the directly contrary implication of the self-ownership thesis. Since a person “may even destroy the thing, that he has property in,” suicide would be permissible on the premise that human beings are self-owners. According to this reading, Locke would be signalling the true grounds of his natural law or natural right doctrine, self-ownership.
Two other interpretations of Locke’s apparent admission of suicide are possible, however, both of them more easily reconcilable with the divine-ownership thesis and the resultant suicide taboo. Perhaps the key point is the indirectness of the suicide in the case of Locke’s slave; courting death at the hands of another may differ sufficiently from death at one’s own hands to avoid running afoul of the suicide taboo. An alternative line of reconciliation of the suicide taboo and the slave’s right to seek death might lie in Locke’s claim that the slave has already “by his fault, forfeited his own life, by some act that deserves death” (II 23). Having forfeited his life, perhaps he is no longer bound by his duty to God not to harm himself, and especially not to take his life.
Neither interpretation that attempts to reconcile the slave’s right to indirect suicide with the suicide taboo works, however. The indirection argument maintains, in effect, that courting death, as Locke concedes the slave may do, is not suicide, and therefore not prohibited by the suicide taboo;78 it is the master and not the slave who takes the slave’s life. In his formulation and application of his natural law limits, however, Locke has made room for such indirect harms. One may not, for example, “take away, or impair the life, or what tends to the preservation of the life . . . of another” (II 6). But since under the workmanship argument the duties to self and to others are simply parallel, one may not destroy oneself indirectly either. John Simmons is justified, in other words, in concluding from these passages that one “may not do that which ‘tends to’ his own destruction, either.”79 But that is surely what Locke’s slave is doing. Moreover, in the way he describes the actions of the slave, Locke stresses the slave’s agency. He not only makes no appeal to an indirection argument, he emphasizes the slave’s resistance to the master as an act “in his power”; thereby the slave can knowingly and intentionally “draw on himself . . . death” (II 23).
Locke’s contemporary Pufendorf addresses the question of suicide in his Elementorum Jurisprudentiae Universalis, a book Locke admired. Pufendorf supports rejecting the indirection argument. With regard to the rightfulness of suicide, Pufendorf explicitly takes up the issue of indirection. “Whether a person falls by his own hand, or in any way whatsoever forces others to put him to death seems not to have any bearing.” If, Pufendorf concludes, one is morally bound not to take one’s own life, then one “is not excused if one has used the hands of another in bringing about death, since forsooth, one is reckoned to have done oneself that which one does through the instrumentality of another.”80
The more serious alternative to recognizing Locke as withdrawing the natural law prohibition against suicide is the forfeiture argument. The slave may commit suicide because he has already “forfeited his own life by some act that deserves death”; the suicide taboo remains intact for those who have not so forfeited their lives. Perhaps by forfeiting his right to life he also relinquishes his duty to life.
More careful analysis of the logic of God’s proprietorship, however, reveals that the forfeiture argument cannot make divine ownership consistent with Locke’s waiver of the natural restriction on suicide. Suicide is initially declared illicit because God owns human beings; therefore, being the property of another, they do not have the right to destroy themselves. For the same reason, human beings lack the right to destroy (or harm) other human beings. In a derivative sense, thus, we can say that John possesses a right to life vis-à-vis Thomas because Thomas is barred from destroying him. If John violates the natural law prohibition, however, and threatens the life of Samuel, then Thomas, among others, is empowered to harm or even destroy him. Thomas no longer has a duty to refrain from harming John, and therefore we could rightly conclude that John no longer possesses a right to life vis-à-vis Thomas or others in a position to punish him for his violation of the law of nature. To have rights against other human beings, rights understood as derivative from the primary natural law duties, means to be the beneficiary of the others’ natural law duties. When the duty ceases, so does the right. This is what, under the workmanship argument, it must mean to “forfeit” a right.
But does this argument for “forfeiture” also imply that John loses his duty to preserve himself, one implication of which is the prohibition on suicide? This duty is owed directly to God: John belongs to God, and has no right to destroy God’s property. This relation to God, and this limit on John’s rightful actions deriving therefrom, are not affected at all by any change that may occur when Thomas’s duty not to destroy John is lifted.
The only way suicide could be justified in such a case would be to interpret it as an enforcement of the law of nature under the executive power. John as enforcer kills John as criminal. Locke surely gives us no reason to understand the slave’s suicide in this way, and indeed goes out of his way to foreclose such an interpretation. Locke expressly denies the slave the right to end the state of war with the master by compacting into slavery, for “no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life” (II 24). If John’s forfeiture of his right to life vis-à-vis Thomas includes a repeal of his duty to preserve himself through an empowerment of himself to murder himself, then clearly John would possess the right to compact himself into slavery also.
Locke’s winding comments can make sense on the basis of an alternative hypothesis, however: Locke is subtly shifting the ground of his argument from divine proprietorship to self-ownership. Self-ownership either rests on, or implies, or includes a right to life. A right to life, as opposed to a duty to life, includes a right to end one’s life when it becomes too burdensome, for a right is a liberty, not a duty (see I 92, II 123).81
This interpretation of Locke’s ground as self-ownership and the right to life threatens to make even more havoc in Locke’s system, however, than the workmanship argument. Surely the fixed destination of his argument is the rejection not only of the Filmerian notion of absolute government by nature, but also of the Hobbesian (and even the Grotian possibility of) absolutism by compact.82 The ground for reaching this destination appears to be precisely the divine-ownership-derived denial of self-ownership, setting specific and apparently unbreachable limits on the compacts one may make. If, on the contrary, human beings are self-owners, and possess a right to life that incorporates a right to suicide, what is there in Locke’s philosophy to foreclose the Grotian opening toward absolutism?
The complete answer to these troubling questions cannot be reached until we have resolved the meaning and importance of Locke’s affirmation of self-ownership, or his construal of rights as “property.” Nonetheless, a tentative answer can be put in terms suggested by Thomas Jefferson’s reformulation of Locke’s position in terms of inalienable rights. John Simmons is correct to remind us that Locke barely deploys the language of inalienability in the Treatises.83 Nonetheless, Jefferson and the authors of other of the founding American documents did not hesitate to translate Locke into the language of inalienable rights. Not only the well-known Declaration of Independence, but the Massachusetts Declaration of Rights of 1780 in its very first sentence after its preamble pronounced that “all men . . . have certain natural essential, and unalienable rights.” The Vermont and the Pennsylvania constitutions used almost the same language. The Virginia Declaration of Rights said almost the same in more words: “all men . . . have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact, deprive or divest their posterity.”
The concept of inalienable rights allows us to make good sense of Locke’s apparent vacillations on slavery. If the right to life is an inalienable right not derivative from a prior duty, as stated in the workmanship argument, then both the licitness of suicide and the illicitness of absolutism would be intelligible. “To have a right is more than to be a recipient of certain duties, it is to exercise one’s sovereignty. . . . An active right expresses that a person is sovereign over a part of his moral world.”84 It means one has a certain set of choices respecting the object of one’s rights. For instance, one’s right to free speech incorporates the moral power to choose not to speak out. The dimension of choice distinguishes a right to speak from a duty to speak. The right over an object, then, includes the right to use it as one will (abstracting for the moment the claims of other rights-holders and other moral limitations imposed on one’s actions). It even includes, as Locke says, the right to destroy the thing in which one has a right.
Applied to the right to life, this view of rights implies a right to suicide: one may licitly destroy the object of this right, one’s own life. Yet Locke insists we cannot surrender to another our right to life. This paradox may be readily resolved by distinguishing between the right itself and the object of the right. We may alienate (or destroy) the object of an inalienable right, but not the right itself. For example, to take the easier case of the right to property: Surely our right to property includes the right to dispose of it through sale or gift, that is, the right to alienate it. Yet the right to alienate property does not imply the right to alienate the right to property itself, that is, the moral capacity to be a property holder. Indeed, the very act of alienation of property is an exercise of the right to property.85
The paradoxical implication of the notion of an inalienable right is that a person may give up life but not the right to life. Should a person succeed in committing suicide, then the distinction, of course, means little. Yet we might consider one who attempts suicide; Locke might argue that this person had a right to attempt suicide, and yet did not, for all that, therefore lose the right to life. A failed suicide retains exactly the same right to life all others have. The attempt at suicide represents neither a forfeiture nor a surrender of right.
As a rights-holder, one may exercise one’s right by renouncing the object of the right. One may, for example, give away all one’s external goods and eschew the possession of private property. This does not amount to a renunciation of the right to property; one would be free to change one’s mind and later exercise one’s capacity to hold and own property. The recognition of the inalienability of the right in a state of nature would be the continued possession of whatever moral right of appropriating external goods others had. In civil society the embodiment of inalienable right would be the continued recognition of the agent as a potential rights-holder to whom the “protection of the law” would be available. The inalienable right stands as a persisting standard of justice. Since in civil society civil laws “regulate” matters such as property or the protection of persons, the rights held under such law are not purely natural. Locke’s point, however, is that the natural inalienable rights set requirements that any just political society must meet. Likewise, one may, like Sir Robert, accept the terms of absolute rule. This does not amount to an alienation of right either, for, according to Locke, whenever one understands things better, one is free to reclaim one’s non-slave condition. This is Locke’s point: No compact we may make for ourselves or others can morally disbar us from rejecting a condition of slavery or servile political subjection. We are always morally justified to reject such conditions, and prudentially counselled to construct the institutions of our common life so as to guard against the de facto exercise of absolute power.
Locke’s repeal of the suicide taboo does not endanger his liberal anti-absolutism, then, for the two positions are consistent with the affirmation of a natural inalienable right to life—and only with that. It does, however, plant him unreservedly on the side of self-ownership: human beings possess a right but not a duty to life.