PART THREE

Natural Rights and the New Republicanism

CHAPTER SEVEN

Locke and the Reformation of Natural Law: Questions Concerning the Law of Nature

IN 1688–89 the most Whiggish of the Whigs were Grotians; by 1750 or so, they were Lockeans.¹ The obfuscating theory of unicontractarianism has concealed the fact of this change so effectively that we have no real idea of how it came about or what it signifies.² But by the time the Americans began their serious thinking about politics, at the end of the Seven Years War, Locke was so firmly ensconced as the Whig theorist of the revolution that his immigration to America had been natural and easy.³

Only in the last half of the twentieth century are we in a position to piece together the first part of the story of Locke’s Whig ascendancy, for only since mid-century has Locke’s sole extended writing on the law of nature been available to scholars. In the early 1660s, while still a rather young scholar at Oxford, Locke offered a series of lectures in moral philosophy in connection with which he apparently prepared the untitled manuscript now known as Essays on the Law of Nature or Questions Concerning the Law of Nature (I shall refer to it by the latter title).⁴ That manuscript presents what Locke assumed, but never developed or explicated fully in his published works: a relatively comprehensive theory of natural law. As Locke said at an especially pregnant moment of his Second Treatise on Government, “It would be besides [sic] my present purpose, to enter here into the particulars of the law of nature.” As his editor, Peter Laslett, commented, “It was always beside his present purposes.”⁵ Although the Questions does not clear up every question one might wish to raise about Locke on the law of nature, it does go a long way toward remedying this so-noticeable omission in his published works.

The Questions on the Law of Nature not only presents Locke’s views as of 1664, but it presents his considered judgments on the many important natural law theorists who preceded him, in particular Hugo Grotius. Close study of Locke’s Questions reveals a deep and thoroughgoing critique of the Grotian natural law doctrine. Despite this, Locke incorporates certain emphases in his own doctrine that parallel themes in Grotius and that help begin to account for how Locke replaced Grotius as the leading Whig authority on politics over the course of the half century following 1688.

GROTIUS, PUFENDORF, LOCKE

It may seem quixotic to treat Locke’s Questions as a critique of Grotius, for Grotius never once appears by name in Locke’s book. Nonetheless, Grotius has an unmistakable presence there. For example, in Question I, Locke twice quotes Grotius at length, and without acknowledgment, a practice not at all uncommon in the seventeenth century, and one that Locke followed in the Questions fairly regularly, with respect not only to Grotius but to most of the other earlier writers on natural law. Locke quotes or refers to recent writers like Richard Hooker, Thomas Hobbes, and Samuel Pufendorf without mentioning their names or citing their books.⁶

Grotius appears, then, to be but one among many of the natural law writers considered by Locke in his Questions. Grotius nonetheless has a certain primacy among Locke’s predecessors, a primacy reflected in the very structure of the work. Locke’s Questions is divided into three parts, each devoted to a central issue concerning the natural law. The first section (Question I) addresses the existence of the natural law, the second section (Questions II–VII) the knowability of the natural law, and the third section (Questions VIII–XI) the obligatoriness of the natural law.⁷ Grotius is so strong a presence in Locke’s Questions that the latter’s treatment of the knowability and obligatoriness of the natural law are largely but not exclusively critiques of the Grotian positions on the same topics.

The most obvious difference between Locke and Grotius on the law of nature is this: Where Grotius had daringly said that the law of nature would be even if there were no God, Locke insists that God is simply indispensable to the law of nature. Locke signals his dissent from Grotius from the first sentence of his book. The beginning point of his consideration of natural law is his recognition of the near universal recognition of the existence of God (fol. 9).⁸ Locke’s point in beginning there becomes clear shortly thereafter, when he proffers his definition of the law of nature as “the command of the divine will, knowable by the light of nature, indicating what is and what is not consonant with a rational nature, and by that very fact commanding or prohibiting” (fols. 11–12). Locke thus emphatically rejects the Grotian etiamsi. For Locke, no God, no natural law.

Moreover, immediately after providing his own definition, Locke explicitly challenges the definition Grotius had offered. Where the Dutchman had identified the law of nature as “a dictate of right reason,” Locke pointedly insists that “less accurately some say it is a dictate of reason; for reason does not so much lay down and decree this law of nature as it discovers and investigates a law which is ordained by a higher power” (fol. 12). Locke’s rejection of the etiamsi and of the Grotian idea of “a dictate of reason” are, of course, related, for (human) reason cannot in any sense be the source of the law if God necessarily is.⁹

Locke’s insistence on the necessity of God signals a shift away from Grotius in one important respect, but not necessarily in the underlying concern that pushed Grotius toward his famous affirmation in the first place. Locke shows the same desire to find a natural law entirely independent of the particular—and variable—theological-scriptural politics of the various parties in post-Reformation Europe. The law of nature, Locke emphasizes throughout, is “a law which each individual can discover by that light alone which is implanted in us by nature.” Revelation has nothing to do with it, “since we are inquiring, not into what man has the power to know when filled by the divine spirit, [nor] what he has the power to behold, illuminated by a light come down from the heavens, but what, by the power of nature and his own sagacity, man, equipped with mind, reason, and sense, can unearth and investigate” (fols. 11, 23–24). The God who stands as the source of natural law for Locke must be accessible entirely to the unassisted human reason; natural law depends on natural theology. The centerpiece of Locke’s argument, therefore, is a rational proof for the existence of God, and thence of the existence and content of the natural law.

Locke announces the necessity of God very early in his work, but it is only rather late in it that the point of his insistence becomes clear: God is required for the law of nature to have obligatory force. That in turn is crucial, for the distinguishing feature of law as such is obligatoriness. “The formal definition of law seems to consist in its being the declaration of a supreme will” (fol. 12). Law, as opposed to mere advice or inauthoritative commendation, contains a “bond,” that bond being “obligation,” or “duty.”¹⁰ In the case of the law of nature, the “duty” is what “is incumbent on each individual as something which must be performed by reason of one’s own nature” (fols. 12, 83). But nature itself cannot impose obligation: “No one can oblige or constrain us to do anything unless he has a right and power over us.” Only if one can find in nature the will of a superior can there be said to be a law of nature, as opposed, say, to a natural good. Obligation, and thus law, can ensue only when there is an antecedent superior/subordinate relationship (fol. 83).¹¹

In identifying obligatoriness as the core of what makes law law, Locke follows a very old tradition; as he himself says, this is the way the Roman lawyers saw it (fol. 83). Although they referred in particular to the civil law, Locke extends the point to the natural law. In so doing, Locke assimilates natural law to ordinary law, a procedure generally reminiscent of Grotius, even if Grotius did not make quite the same specific move regarding the obligatoriness of the natural law.

Grotius, it must be said, was far from satisfactory in explaining the obligatoriness of the natural law.¹² On the one hand, he and Locke appear to agree that obligation is a necessary feature of law: “We require obligation, for even the best counsel, if it is not obliging, comes not under the name of law (lex) or right (jus).” On the other hand, Grotius is seriously unclear when he attempts to specify the source of the obligatoriness of the natural law. “Natural law,” he says, “is a dictate of right reason, indicating that any act, from its agreement or disagreement with a rational nature, has in it moral turpitude or a moral necessity, and consequently that such an act is either forbidden or commanded by God, the author of nature.” The obligation, or “moral necessity” (logically) precedes, rather than, as in Locke, necessarily follows from the divine command. Although Grotius does not reject God as the source of obligation, he clearly does not agree with Locke that only God can oblige to the natural law. As Grotius says in the immediate sequel, “Acts for which such a dictate exists are either owed [obligatory] or unlawful in themselves, and are therefore understood as necessarily either commanded or forbidden by God.” He distinguishes the natural law from the divine positive law precisely on the ground of the per se obligatory or forbidden quality the commands and prohibitions of natural law: the divine positive law “does not command or forbid acts which are in themselves and by their own nature owed [obligatory] or unlawful, but by forbidding makes them unlawful, by commanding makes them owed [obligatory].”¹³

Grotius blurs his own position by constantly conjoining the divine command or prohibition with the purely natural apprehension of the rational quality of the acts, but his point is clear enough: the obligation exists (logically) prior to and independently of the divine command; indeed, the divine command is posited only on the basis of the prior grasp of the natural law obligation. That the divine command reinforces the natural obligation in no way compromises Grotius’s basic thesis: the obligation of the natural law would exist “even if there were no God.” Nature is the sufficient condition for the natural law.

Although Grotius insists that obligation is a necessary condition for law, and that nature is the source of the obligation of the natural law, he hardly explores how. So far as he has an answer, it is something like this: The natural law expresses the requirements of human rational, social life, and to be true to their nature human beings are obliged to conform to the natural law.¹⁴ Grotius’s answer, then, is that the obligatoriness of the natural law derives from the content of the natural law, a position altogether different from Locke’s, who finds legal obligation not in the law’s content but in its source. The dispute between Grotius and Locke reproduces the long-lived dispute between legal rationalists and voluntarists.¹⁵

It is not difficult to identify at least one reason that held Grotius back from finding the defining quality of law in the will of a superior, as Locke did. The kind of law Grotius had most interest in developing was the law of nations, the law that prevailed between nations. But between nations there is no superior, and therefore, if the will of a superior is necessary for a law, there is no law of nations and no subject matter for Grotius’s treatise.

Locke, of course, was not the only natural law writer to reject Grotius’s derivation of obligation from the content rather than the source of the law. Writers like Thomas Hobbes, Samuel Pufendorf, and Nathaniel Culverwell also refused to follow Grotius on this issue, for his position was exposed to a very grave difficulty. Grotius appears able, at best, to generate a hypothetical obligation: to live according to one’s nature, one ought to obey the natural law. But where is the obligation to live according to nature? What if one understands one’s nature in the manner of Carneades? As Grotius concedes in a key place, perhaps the best one can really say is that it is “wise” to live according to the promptings of nature; he cannot establish the obligatoriness of the natural law.¹⁶ Grotius is caught in a bind: he seeks a truly lawlike natural law, but his position on obligation prevents him from accomplishing his goal. Locke’s strong affirmation of the voluntarist alternative reflects the failure of the Grotian rationalism.

Locke thus clings to and better fulfills the Grotian aspiration to a genuinely lawlike natural law. Indeed, in positing the source of law as the locus of its lawfulness, Locke surely does bring the natural law closer to law as we ordinarily experience it. Normally it is sufficient to identify a law as the duly expressed will of the appropriate authorities in order to recognize it as law.

At first sight it appears that Locke’s break with Grotius is based on the influence of the German natural law writer Samuel Pufendorf. In 1660, only a few years before Locke began the Questions, Pufendorf published his first major work, Elementorum Jurisprudentiae Universalis, a new treatment of natural law aiming to synthesize the philosophies of Hobbes and Grotius. “No small debt . . . do we owe to Thomas Hobbes,” Pufendorf conceded, “whose basic conception in his book De Cive, although it savours somewhat of the profane, is nevertheless for the most part extremely acute and sound.”¹⁷ At the same time, Pufendorf decreed Grotius “incomparable” and admitted to having “drawn much from that marvelous book, De Jure Belli ac Pacis.”¹⁸

Despite his admiration for Grotius, Pufendorf was apparently sufficiently moved by Hobbes’s notion of law as the will of a superior to endorse a definition of law that left no room for Grotius’s etiamsi: “A law is a decree by which a superior binds one subject to him to direct his actions according to the command of the superior.”¹⁹ Just as in Locke’s definition, no superior, no law. Although Pufendorf retains the Grotian formula of “dictate of right reason,” nonetheless he silently corrects this in the direction of Locke’s comment that reason does not “lay down and decree” law so much as “discover and investigate” it. Echoing Hobbes again, Pufendorf proclaims the laws of nature “to be merely certain conclusions, perceived by the reason” (i.e., not laid down by it), “touching things to be done and to be avoided.”²⁰

Pufendorf’s influence on Locke’s definition is even more visible in the latter’s attempt to justify his definition in terms of criteria essential to all law, criteria clearly adapted from Pufendorf’s discussion of law. Locke identifies three, or perhaps four, such characteristics of law in Question I, all taken from Pufendorf. As Robert Horwitz observes, Locke’s definition of the law of nature “seems fashioned to meet these criteria.”²¹ Later, in Question VII, Locke adds another criterion, this too an essential aspect of law as presented by Pufendorf. The four- (or five-) part definition of law that Locke takes over from Pufendorf is: (1) It is “the declaration of a superior will”; (2) it “prescribes what is to be done and what is to be avoided”; (3) “it is binding upon men” in being (a) derivative from a superior and (b) properly promulgated; and (4) it has sanctions attached to it.²²

A final indication of the role of Pufendorf, again embodying a Hobbesian theme, is the hard distinction Locke draws between natural law and natural right: like his two most recent predecessors, but unlike Grotius and the rest of the precedent tradition, Locke insists on the difference—amounting to opposition—between natural right (jus naturale), as “free use of something,” and natural law (lex naturale), as “that which either commands or forbids some action” (fol. 11).²³ As Hobbes put it, law and right “in one and the same matter are inconsistent.”²⁴

At the same time, there are definite limits to Locke’s dependence on Pufendorf. These, too, come to sight as early as the first Question and pervade the entire work. As eclectic as Pufendorf is in his effort to synthesize Grotius and Hobbes, Locke appears to be much more so in his endorsement of a variety of arguments on the natural law that even Pufendorf had found too diverse to affirm. Almost two-thirds of Locke’s first Question is given over to five “arguments” that, he states, “persuade that a law of this kind exists” (fol. 13). Locke’s survey of arguments made on behalf of the law of nature again interestingly echoes some passages in a parallel place in Pufendorf’s Elementorum. Pufendorf introduced his consideration of the natural law with the observation that “as to what the law of nature properly is, what its fountain-head, as it were, and by what indication a matter is recognized as pertaining to the law of nature, there is no complete agreement among the learned.”²⁵ That comment prefaces a survey by Pufendorf in which he recognizes the differences between the various doctrines he reviews, and takes a critical stance toward most of them. Locke, on the other hand, appears to endorse uncritically all five of the arguments he restates, many of which were identical to ones rejected or much revised by Pufendorf.

One noticeable difference between Locke’s list and Pufendorf’s is that Locke cites conscience as an argument for natural law and Pufendorf does not, while Pufendorf cites the Roman lawyers’ notion of natural law and Locke does not.²⁶ The presence of conscience and the absence of Roman law in Locke’s version point to one feature of Locke’s treatment that tends to distinguish it more generally from Pufendorf’s: echoes of Christian, or at least theological, themes are much stronger right on the surface of Locke’s discussion than Pufendorf’s. In addition to his explicit incorporation of Christian themes, Locke leaves the overall impression of retaining clearer and stronger ties with the natural law tradition as a whole than Pufendorf does. The latter clearly incorporates crucial Hobbesian elements in his doctrine, and either openly or tacitly departs from traditional (e.g., Thomist) natural law theory; Locke, as we have seen, also incorporates important Hobbesian elements in his assimilation of Pufendorf, but he blunts the effect of that by combining it with a more eclectic approach to the natural law. For example, the five arguments Locke endorses are an argument openly taken from Aristotle; an argument from conscience, supported by a quotation from the Roman poet Juvenal, but clearly reminiscent of passages in the New Testament;²⁷ an argument explicitly supported by a quotation from Thomas Aquinas, quoted earlier by Hooker; an argument concerning the relation between the law of nature and “the foundations of society,” attributed to no specific earlier writer but distinctly reminiscent of Grotius; and finally a fifth argument, again unattributed, but reminiscent of Pufendorf’s doctrine.²⁸

Locke presents himself, then, as agreeing with Aristotle, Juvenal, the New Testament, Thomas Aquinas, Hobbes, Grotius, and Pufendorf. On the basis of such things, many scholars have concluded that Locke’s “version of natural law is a continuation of the classical natural-law philosophy; . . . his conception of natural law is continuous with the classical Stoic and Christian tradition represented by Cicero and St. Thomas and coming down to Richard Hooker.” Those scholars who emphasize Locke’s continuity with the tradition are normally eager to parry any suggestion that Locke’s philosophy represents “a deviation from [the tradition], as Hobbes’s certainly is.”²⁹

Just how Locke’s understanding of the natural law relates to various traditional notions is more difficult to say than these scholars make out, however. The most obvious difficulty, implicit in the contrast between Locke’s treatment of these traditional views and Pufendorf’s, is the fact that few, if any, of Locke’s arguments ostensibly going to prove the existence of the law of nature deploy a notion of that law consistent with his own definition of it. The first argument appeals to a combination of Aristotelian points, one to the effect that “the function of man is activity according to reason,” from which Aristotle, or Locke, concludes that “man must necessarily perform those actions which are dictated by reason” (fol. 13). But Locke has on the preceding page explicitly rejected the idea of law of nature as “dictate of reason,” and therefore it does not appear that the “law of nature” Locke attributes to Aristotle can be the same as the law Locke seems to accept. Likewise, he imputes to Aristotle a notion of natural law as “certain principles of conduct which the entire human race recognizes and which men everywhere embrace with unanimous agreement” (fol. 13). Whether Aristotle recognized such a law has been questioned by many readers of Locke’s Questions, but the decisive point here is that whatever Aristotle may have thought, the universal natural law Locke attributes to him falls short of being a natural law in the Pufendorf-Locke sense: Locke’s “Aristotelian” doctrine explicitly identifies “the origin” of this law as “nature” and not, as in Locke’s own definition of natural law, the divine will (fol. 13).

Locke’s second argument “persuading” to the existence of a law of nature “can be derived from men’s consciences.” The kind of law implicit in this argument also seems not to satisfy Locke’s definition of the law of nature, for it does not satisfy that definition’s requirement that the law be “knowable by the light of nature,” where the “light of nature” appears to be reason, understood as “that faculty of the intellect by which it articulates and deduces arguments” (fol. 11; cf. fols. 12, 48, 49). Locke’s own discussion, that is, is very like Pufendorf’s, according to whom reason discovers laws of nature via discursive reasoning to conclusions.³⁰ For neither Pufendorf nor Locke, would conscience be an example of such reasoning.

Locke’s third argument fails to embody the final clause of his own definition of the natural law. In the argument he cites “the very fabric of this world, in which all things observe a fixed law of their operations . . .” He quotes Hippocrates in support of this notion of law: “Each thing in both small and in great fulfilleth the task which destiny hath set down” (fol. 18). His definition of the law of nature points to a very different kind of law, however, for the law Locke has in mind “commands or forbids some action” (fol. 11). Locke’s law of nature is prescriptive, not determinative. Pufendorf is quite explicit in his consideration of those “who call the law of nature that order implanted in all things by the Creator, whereby each thing does what is in accord with its nature and moves toward its destined end.” He does not accept this as an adequate account, for he is “seeking such a law of nature as will direct the action of the rational man.” Among other things, that means law “touches actions only through the intellect”; natural law addresses “voluntary actions,” that is, “those actions placed within the power of man, which depend upon the will, as upon a free cause.”³¹

Locke’s final two arguments in favor of the existence of the law of nature do not so much say what the law is as describe what it does: it provides the foundation for social life by setting bounds to the power of rulers and establishing a ground for the obligation of pacts—a Grotian idea—and it establishes the basis for all morality. “Without the law of nature there would be no virtue, or vice, no praise for probity or punishment for wickedness” (fol. 20). Without law, there would be only human will, or human pleasure and interest, or blind impulse to guide action. Properly adumbrated, these two arguments could indeed be consistent with Locke’s definition, although they neither imply it, nor it them.

At least three of Locke’s five traditional arguments, therefore, rest on a notion of natural law inconsistent with his own definition. It is difficult not to be puzzled by Locke’s procedure in Question I. Can he indeed be presenting five arguments from the tradition he accepts, arguments that betoken his essential continuity with the tradition? What, moreover, does it mean to affirm a continuity with a “tradition” that is quite disparate in itself? How can Locke both follow Pufendorf in rejecting important elements of the Grotian natural law and reaffirm the Grotian natural law?

Some scholars consider Locke to have been confused, but perhaps closer attention to his text can make his intention clearer without necessitating a last-resort explanation of that sort.³² Locke introduces his five arguments in the following quite precise manner: “The following arguments persuade that a law of this kind exists” (fol. 13). But whom do they persuade? Locke does not say that they persuade him, and the lack of fit between his own definition of the law and most of these arguments suggests that it is not he whom they persuade. As we shall see later, there are yet stronger reasons to conclude that Locke does not in fact endorse these five arguments for the existence of a law of nature, but rests his acceptance of the law on an entirely different kind of reasoning.

LOCKE AND THE IMMANENT NATURAL LAW

If these arguments do not persuade Locke, then whom do they persuade? Let us suppose, as a hypothesis, that these are the arguments Locke finds persuade most or all of those who accept the natural law. These are the generally persuasive arguments; they help account for the widespread belief in natural law. As such, they pose a question to Locke the young philosopher: Are they worthy of credence? That is the question he will more or less follow out in the remainder of the Questions, especially in the next section of disputation, where he investigates the issue of how the law of nature is known and along the way reconsiders and rejects the “persuasive” arguments he presented in Question I.

Questions II–VII constitute by far the longest section of the manuscript, both in the number of questions and in the number of pages. The section is devoted to the issue of “by what means the law of nature is known,” a question of utmost importance because of its central relation to the problem of promulgation: in order for the law of nature to be a law, it, like all law, must be promulgated—known or knowable (fol. 22). If the law is not sufficiently promulgated, it cannot be obligatory, for humanity cannot be bound to follow a law insufficiently declared to it. Likewise, an unpromulgated law is contrary to the very nature of law as a rule for governing voluntary actions.³³ Within the tradition, a variety of answers had been given as to the precise mode in which the natural law is promulgated. Many argued that through conscience or some kind of innate knowledge the law of nature is “written in the hearts of men.” Some argued that the principles of the natural law are self-evident truths of the practical reason. Most followed Thomas in seeing the natural inclinations as indications of duties under natural law.

Surely the most striking and unique feature of Locke’s Questions Concerning the Law of Nature is his treatment of the theme of promulgation. Whereas much of the rest of the discussion retains close ties to one or another of his predecessor natural law writers, he breaks almost completely with all his predecessors, including Grotius, on promulgation.³⁴ His positive argument on promulgation is, to say the least, disappointing. Less than a short paragraph suffices to contain it all, and in that short passage he says little that is truly helpful in understanding how the law of nature, as a set of substantive rules, is promulgated (fols. 60–61). His negative, or critical, argument, on the other hand, is lengthy, acute, and deep-going. The John Locke who was to explode on the world almost three decades later in the Essay Concerning Human Understanding is unmistakably present in this part of the Questions; Locke the epistemologist clearly has found his voice here. In a series of arguments reminding very much of Book I of the later Essay, Locke succinctly and successively rejects all the modes of promulgation that had been identified by earlier theorists.³⁵ Not tradition, not conscience, not innateness or inscription, not self-evident principles of reason, not natural inclinations—none of these constitutes a promulgation of the law of nature.

While exploring the various modes of promulgation in the second section of the Questions Locke also reconsiders those arguments favoring the existence of the law of nature he had sketched in Question I.³⁶ The connection between the arguments presented in Question I and Locke’s investigation of the promulgation issue derives from the fact that most of the arguments for the existence of the law of nature in Question I take as their point of departure some claim about the way in which natural moral principles are present for or given to human beings. The arguments proceed from a claim about the presence of moral standards to the existence of a natural law; the discussion of promulgation proceeds in the reverse direction, but the relevant considerations are just the same.

Most striking in Locke’s second treatment of the ways in which the law of nature may be present to human beings is the vehemence with which he denies the premises from which the arguments in Question I proceeded. This is especially clear with regard to the first argument, allegedly taken from Aristotle. Locke attributes to Aristotle the view that “‘this natural law is that law which has everywhere the same force’ from which it is rightly inferred that there exists some law of nature, since there exists some law, which obtains everywhere” (fol. 13). Locke’s elucidation of the reasoning according to which the law of nature is inferred, however, reminds far more of Grotius than of Aristotle, who is famous for having said not what Locke puts into his mouth but rather that all natural right is changeable.³⁷ Locke’s Aristotle reasons, however, that “there exist certain principles of conduct which the entire human race recognizes and which men everywhere embrace with unanimous agreement; which could not have come about unless it had its origin in nature” (fol. 13).

Whether Locke understood this to be a distortion of Aristotle or not is difficult to say with any certainty; it is far easier to judge that Locke most likely came into contact with this argument in this form in the pages of Grotius. Locke may have meant to signal Grotius’s Aristotelian roots, but whatever his intent, he quite accurately reproduced an important part of Grotius’s position regarding the promulgation of the natural law.

Grotius had innovated on the question of promulgation, just as he had on other issues. He identified two methods for determining whether something “is or is not part of the law of nature,” that is, whether it is known as a law of nature. The first method, the a priori method, is the more philosophic, the more “subtle”; it requires showing the “necessary agreement or disagreement of anything with the nature of a rational and social being.” The a priori method, in other words, expresses the core ground of the Grotian law of nature. The a posteriori method is “more popular” than the other; it identifies the law of nature in terms of what is accepted as such “among all, or among all the more civilized nations.” This latter method has less “certainty” than the former, for it does not display the inner necessity that makes something part of the law of nature, as the a priori method does. Nonetheless, it has a real measure of authority for Grotius, for, as he says, “a universal effect requires a universal cause”; universal agreement must derive from “the common sense of mankind,” or from nature, or from “correct inference from nature.” This is the Grotian argument Locke brings into Question I. Although Grotius gives a privileged position, in theory, to the a priori method, in practice he relies heavily on the a posteriori or popular method. What is generally or widely accepted is both more effective and more known; “subtle” reasonings such as the a priori method involves are not the stuff by which practical life is governed, and Grotius’s intentions are importantly practical.³⁸ Locke’s first argument in Question I refers to Grotius’s a posteriori method, even while anomolously attributing it to Aristotle, and his Question VII contains an extended discussion of the validity of this method.³⁹

Although Locke fails to mention Grotius by name, he paraphrases the relevant Grotian text: the consensus on moral rules must point to the law of nature, Locke hypothesizes; “since they [the rules of conduct] are the same in all men, [they] can have no other author than god and nature” (fol. 67).⁴⁰ Yet, Locke insists, there is in fact no such universal agreement on conduct or on the standards according to which conduct is judged.⁴¹ The “consensus of mankind” does not indicate the content of the natural law because “there exists among men no common consensus concerning right conduct. . . . There exists virtually no vice, no violation of the law of nature, no viciousness, which will not be quite evident to anyone who consults and observes the human events [of his own time] as not only something allowed privately somewhere in the world, but also ratified by public authority and practice. Nor has there existed anything so disgraceful in its own nature that it has not in some place been sanctioned by religion or considered as a virtue and exalted with praise” (fol. 68). Since there is no practice that is universally held to be part of the law of nature, or morally correct, Locke concludes, “were the consensus of mankind to be considered the rule of morals, there would either exist no law of nature, or this law would vary from place to place; one thing is considered virtuous in one place and vicious elsewhere; and vices themselves are transformed into duties” (fols. 69–70).

Grotius had sought and claimed to discover a natural law which was indeed effective in the world, as witnessed by its widespread acceptance. Grotius’s law of nature, like that of the Thomists before him, is natural, in that it is present in the world—in Grotius’s case, in actual universal or very widespread practices and opinions. Locke severs the natural law from nature in that sense. It lacks immanence; it is neither known nor practiced in the world; surely it is not universally practiced. It is, at least up until Locke’s own revelation of it, definitely not an “effective truth.”

Although Locke cannot have been persuaded of the existence of the natural law by the “unanimous agreement of the entire human race,” because he is very far from believing that there is such a consensus among humanity, he nonetheless affirms his knowledge of both the existence and content of the law, presumably on quite other grounds, because he pronounces many of the practices of mankind to be in “violation of the law of nature” (fol. 68). The clear implication of Locke’s statements in Questions I and VII is that the practices to which he refers in VII do not derive from nature. As he puts it in Question I, “If the laws were positive, and established by men at their pleasure, without any prior notion of law itself or of obligation, they would not so resemble one another everywhere, nor would they be in such close agreement with one another” (fol. 14). But they do not resemble one another; they are not in close agreement, and thus these human laws and practices bespeak not natural but positive law.

Even in Question I Locke retreats from his affirmation of universal consensus, in this following Grotius again, up to a point. He concedes that the law is not known universally, and that “therefore, we must consult not the majority of mankind”—to say nothing of the universality—“but the sounder and more perceptive part” (fol. 17). The majority will not do, for, as Locke brings out later, in Question II, “most mortals have no knowledge of this law, and nearly all have different opinions concerning it” (fol. 33).

Locke retreats even further, however. Even the “sounder part” cannot be all taken as knowers of the law of nature, because “this sounder part of mankind does not fully agree what the law of nature is, what its certain and known edicts are” (fol. 17). The law of nature is immanent neither to all mankind, nor to the majority, nor to the “sounder part,” for the empirical reality is massive disagreement. If we look to established practice, we see only relativity.

Locke has yet one further fallback position within the dialectic of his first argument for the existence of the natural law. Although the only uniformity in what human beings take the natural law to be is variability, nonetheless “concerning this law all hold the same opinion, and differ only in its interpretation; for all recognize that vice and virtue exist by nature” (fol. 17). The nearly universal variation in what people take the content of the law to be is less important than the universal agreement that nature is the source of moral distinctions; the differences are mere differences of “interpretation” of a universally recognized law. Locke thus retreats to a second-order immanence: the law’s content is not present in universal or widespread or even elite opinion and practice, but the law’s existence is.

Yet even this fallback position must also be among those arguments that persuade others and not Locke, for again he denies in his own name the premise upon which it is built. In Question IV he reiterates the relativist themes we have already noted, repeating the claim that “when it comes to this law, men depart from one another in so many different directions” (fol. 38). The problem is not only the familiar one conceded in Question I, that “in one place one thing, in another something else, is declared to be a dictate of nature and of right reason; and what is held to be virtuous among some is vicious among others.” More significant in our present context than that “some recognize a different law of nature” is that “others [recognize] none.” Locke claims to know of people, those closest to nature in fact, who “live ignorant of any law, as if they needed to take no account at all of what is right and virtuous” (fol. 42; cf. fol. 9). Human beings do not agree even on the second-order immanence of the natural law.

So, Locke’s first argument for the existence of the law of nature not only evokes a conception of law at odds with the one he himself endorses, but it also rests on a premise he explicitly denies, even when he restates that premise to make it less vulnerable to objections that can be raised against it in its original (Grotian) form. The same, more or less, must be said for his second argument for the existence of the law of nature. The second argument looks not to the uniform practices of humanity, but to the phenomenon of conscience. The argument from conscience almost begins where the argument from universal consensus leaves off: it recognizes that human beings act in ways contrary to the law of nature, but notes that when they do so, the conscience pronounces a verdict of guilty. “That verdict which each pronounces upon himself is evidence that there exists a law of nature” (fol. 17; cf. fols. 67–68).

Again, however, as the manuscript proceeds, Locke denies the premise on which the argument from conscience is built. In the all-important Question VII, Locke considers at somewhat greater length the theses raised in Question I about the conscience. Not only “is one thing considered virtuous in one place and vicious elsewhere; and vices themselves . . . transformed into duties,” but when men perform “actions which seem . . . vicious and impious . . . they have felt none of the lashes of conscience” (fol. 70). Human beings feel the “lashes of conscience” not when they violate the law of nature but when they violate the standards set by “dominant opinion” (fol. 70). No matter how vicious an action may be, no matter how much it runs counter to the dictates of the law of nature, “that internal goad of the heart, which usually wounds and torments those guilty of a crime,” will not operate unless the action counters settled social opinion about morality. If it does not do so, transgressors will “consider their action, whatever it was, not only permissible but even something praiseworthy” (fol. 70). Conscience, another potentially immanent mode of the presence of the natural law, betokens not that law, but rather “the power of custom and opinion,” and these, we have already seen, do not derive from or indicate the presence of the law of nature.

We have already noticed that Locke’s third argument for the existence of the law of nature appears almost irrelevant to the law of nature understood as a moral law governing the voluntary actions of human beings, for it refers to a directive law from which all things “depart . . . not as much as a nail’s breadth” (fol. 18). Nonetheless, this third argument cannot be passed over quite so quickly, for the chief authority, unusual because cited by name here, is Thomas Aquinas, the most important thinker in the entire Christian natural law tradition. As several astute readers of Locke’s Questions have pointed out, the passage Locke quotes from Thomas refers to the eternal law and not the natural law, perhaps confirming its irrelevance to the natural law understood as a moral law.⁴² However, since Thomas understands the natural law to be a subclass of the eternal law, what is true of the genus eternal law must also be true of the species natural law. The “participation of the eternal law in the rational creature is called the natural law.” Human beings partake in the eternal law governing all of creation “in an intellectual and rational manner.”⁴³ Thus the eternal law has for human beings the character of a voluntary or moral law. Locke obscures this sense of Thomas’s law in the way he brings it into his first question, and especially by his quotation from Hippocrates, but it lurks somewhere beneath the surface.

According to Thomas, “all things partake somewhat of the eternal law, insofar as, namely, from its being imprinted on them, they derive their respective inclinations to their proper acts and ends.” Most of created being partakes in the eternal law in a nonrational manner—the law merely sets the principles of their action, and they unknowingly obey it. The law of gravitation satisfies this notion of eternal law, for it formulates the “inclination” of material bodies in their motions vis-à-vis each other.

The law of gravitation is not a Thomistic natural law, however, for beings do not participate in it rationally; No more than the oceans or the planets have human beings any choice about obeying the law of gravitation. The eternal law “imprints” on all beings “their respective inclinations to their proper acts and ends,” and human beings are no exception to this. “The rational creature . . . has a share of the eternal reason, by which it has a natural inclination to its due act and end.” The natural inclinations do not determine human actions so much as set the proper ends for actions that human beings rationally and voluntarily pursue. The natural inclinations are thus the means by which the Thomistic natural law is promulgated to humanity. So far as Locke’s third argument, his Thomistic argument, points to the Thomistic natural law theory, it points to the natural inclinations as the way in which the natural law is known or knowable.⁴⁴

Locke treats the Thomist argument in much the same way as he treated the two previous arguments on behalf of the natural law: it may persuade some, but it apparently does not persuade him, for he denies its central tenet. According to Question VI, the law of nature “cannot be known from the natural inclinations of mankind” (fol. 61). This claim appears in one of the Questions in which Locke does not explain his answer at length, but its importance is no less—indeed, is much greater—than many of the questions Locke addresses at great length. Its importance is so great, to repeat, because Locke’s denial of the natural law implications of the natural inclinations amounts to a rejection of the Thomist natural law and thus of the third argument cited on behalf of the natural law in Question I.

Although Locke does not expand on his brief denial of the Thomist theory of the natural inclinations in Question VI, his argument elsewhere allows us to reconstruct the main outlines of his reasoning against the Thomist view. The relevant reasoning is similar but not identical to the reasoning used to reject the Grotian argument from consensus and the Christian argument from conscience. The Thomist view is relatively secure against the arguments used against the other two positions, for Thomas merely affirms that there are natural inclinations pointing to the proper ends. These require completing by human rational and voluntary acts, and therefore the mere failures of agreement or of conformity to the natural law of which Locke made so much, relative to the consensus and conscience arguments, are not so relevant to Thomas. Such empirical failures do not ipso facto speak against the Thomist claim that the natural law can be known through the natural inclinations. According to Thomas, human beings can fail properly to obey their natural inclinations, because those address the human intellect rather than determine human actions.

Seeing the Thomistic doctrine in this manner suggests a pattern to Locke’s “arguments” on behalf of the natural law: they move from the doctrine holding the natural law to be most immanent in the world, the argument from universal consensus, through a variety of reformulations that posit lesser degrees of immanence, culminating now in Thomas’s natural inclinations, nowhere near as immanent as universal consensus or conscience. Nonetheless, the Thomistic doctrine does posit a mode of immanence for the natural law, for the inclinations are given, present, and more or less effective forces in the world.

Implicit in Locke’s standard response to all the other arguments for an immanent natural law lies the likely basis for Locke’s firm conclusion that the natural inclinations do not supply any knowledge of the law of nature. Although the fact of dissensus does not of itself refute the Thomist position, it, together with widespread ignorance and disobedience, speaks strongly against it. If the natural inclinations point to the precepts of the natural law, one would have to expect a real presence of the natural law in the world, in human actions, and in human standards of praise and blame. But the absence of such natural law standards is precisely what Locke devotes Question VII to showing; moreover, he argues in Question IV that those closest to nature behave least in conformity with the law of nature (fols. 40–42).

Locke’s truly decisive reason for rejecting the Thomist doctrine stems from his very different reading of what the natural inclinations actually incline toward. “Those who have no other guide than nature herself, among whom the dictates of nature are least corrupted by positive regulations concerning morals, live ignorant of any law, as if they needed to take no account at all of what is right and virtuous.” Among these natural peoples “there appears not even the slightest trace of piety, gentleness, good faith, chastity, and the other virtues, but they spend their lives wretchedly in rapine, theft, debauchery, and murder” (fol. 42). In Question XI, Locke responds to those who “seek the principles of morals and the rule of life from the natural appetites and inclinations of men . . . as if what is morally best is the object most men strive for” (fol. 116). Although Locke here explicitly addresses other theorists than Thomas, nonetheless the position described is Thomas’s. Locke finds this a defective approach, because if this is the ground for the law, that is, for the duties of human life, then “the condition of human life is such that it would not be lawful for a man to yield anything of his own right or to benefit another without the certain expectation of profit” (fol. 116). The point of Locke’s rebuttal is this: The natural inclinations cannot be the source of a natural law of the type Thomas commends because the natural inclinations impel toward one’s own profit, advantage, or benefit only. Such is the lesson Locke draws from his observation of human customs and human history. The natural inclinations are self-regarding and thus cannot be the source of the social virtues Thomas identifies as simply crucial parts of his law of nature. If the law of nature provides for the sorts of things Thomas says it does, the natural inclinations cannot be the source of its precepts. Locke states the very same point in much starker terms in his later Essay Concerning Human Understanding: “Principles of action indeed there are lodged in men’s appetites, but . . . if they were left to their full swing, they would carry men to the overturning of all morality. Moral laws are set as a curb and restraint to these exorbitant desires.”⁴⁵ Locke affirms that there are “natural inclinations,” but they are not moral in character, that is, they do not point toward a moral law of nature.

Ultimately, Locke is driven toward this manner of treating the natural inclinations not only by his observations of the inclinations at work, but by his adoption of a conception of nature according to which “in her working nature is the same and uniform” (fol. 40). Nature is pure immanence—what works everywhere the same. Thomas, following Aristotle, was deploying a conception of nature of a different sort: nature exists as tendencies and ends; nature often fails in her operations.⁴⁶ For Locke that would be impossible; nature is the manifold of effective causes. In his conception of nature, in other words, we see tracks of the new science, traces of the influence of Descartes, Bacon, and even of Machiavelli. This conception of nature is nearly the deepest element in Locke’s doctrine of natural law, because it is the very immanence of nature as he now understands it that compels him to reject all immanentist versions of the natural law.

The very structure of the second major section of the Questions reflects the concern with the immanence of the natural law as we have discerned it in following out the arguments posed in Question I. The law of nature, to be natural, must be knowable “by the light of nature,” that is, it must be “the kind of truth whose knowledge man can, by the right use of those faculties with which he is provided by nature, attain by himself and without the help of another” (fol. 23). Locke examines “three means of knowledge,” which might be considered natural ways of coming to know the law of nature. The first, inscription, is a clear instance of the kind of immanentism we have seen Locke to be rejecting throughout his Questions: “There are some who judge that the law of nature has been born in us and so graven in the minds of all men that there is no one who comes into the world whose mind does not carry these very characters and marks of his duty graven within him” (fols. 24–25). Of course, all the evidence of a relativist sort that Locke cites and that we have already noticed in other contexts directly refutes this kind of claim for the presence of the natural law in the “hearts of men” in an immediate and innately given manner.

Tradition, the second “means of knowledge” Locke takes up in his second section, likewise affirms an immanent natural law: its content is present to humanity in the body of opinions and precepts “handed down to us by others” (fol. 21). Although Locke emphasizes the power of tradition to shape human opinions of virtue and vice, he strongly denies that tradition provides knowledge of the law of nature. “In such a great variety of traditions, warring among themselves, it would be impossible to establish what the law of nature is, difficult even to judge what is true, what false; what is law, what opinion; what nature commands, what interest, what reason persuades us of, what civil society teaches” (fols. 28–29). Locke thus denies to the law of nature another mode of immanence. Such is the dominant thrust of the Questions: he shows that most, perhaps all, of those who have accepted the teaching of a law of nature have understood that law to be immanent in one way or another. Locke goes out of his way both to bring out that fact and at the same time to criticize sharply all the forms he knew of in which the law was held to be immanent.

NATURAL LAW: NATURAL SOCIABILITY AND NATURAL MORALITY

Locke’s last two arguments allegedly persuading of the existence of the natural law also raise the kinds of issues of immanence we have been considering, but the real focus shifts to other matters. In his consideration of the themes raised by these arguments Locke attempts to supply an account of why people so persistently but unjustifiably posit a natural law of the immanent sort. By disposing finally of the immanent natural law, Locke completes his preparation of the ground for his introduction of his more Pufendorfian transcendent natural law.

The fourth argument Locke brings forward for consideration “derives from human society”: the law of nature appears to be prerequisite to the possibility of “association or union of men among themselves,” for society depends, on the one hand, on a “constitution of a regime” whereby the powers of rulers and the duties of subjects are specified and, on the other, on “the keeping of covenants” (fols. 18–19). The law of nature, according to this argument, supplies the moral glue of obligation to ground these two all-important sets of practices grounding human society. Echoes of Grotius’s law of nature, making for or deriving from human sociability, are very apparent here. The Grotius connection points to the broader theme implicit in this argument: the law of nature as thus understood confirms or assumes that human beings are sociable by nature.

Locke himself is no more persuaded by this Grotian argument regarding the character of the law of nature than he was by the Dutchman’s argument regarding consensus. In order to appreciate the force of Locke’s reply to this argument, one must note that Locke takes for granted that human society, “association or union among men,” does exist. That is not at issue; all that is at issue is whether that fact implies or depends upon the existence of natural law. Horwitz pointed out one key fact—“Locke’s acknowledgement” (I would add, insistence) “that natural law is hidden from men and therefore is, at best, known to very few.”⁴⁷ If most human beings do not know the natural law—if, in fact, there are some societies in which no human being knows it—then knowledge of the natural law must not be necessary for the cohesion of society (fols. 33, 38, 41–42, 64–66, 68–72).

The kinds of human agreements or consensus that ground regimes or support contract do not, according to Locke, necessarily point to or rely on the law of nature at all. In the important seventh Question, the chief locus of his response to Grotius, Locke not only denies the existence of general consensus, but such consensus as he admits to exist rests on an altogether different foundation. He divides consensus into two types—“positive” and “natural.” According to Locke, “a positive consensus [is] one which issues from a compact, either tacit, as when some common human necessity or advantage draws men to it, . . . or expressed” (fol. 63). Locke denies any natural law connections to such compacts: “Neither of these kinds of agreements proves the existence of a law of nature at all, since they both depend on a compact, and issue from no principle of nature whatsoever” (fol. 63). If such compacts have nothing to do with the law of nature, then the law of nature must not be necessary for their force, as the fourth argument in Question I implied. The force of contract, Locke suggests, derives not from the law of nature but from the “common human necessity or advantage” that drew men to make it in the first place.⁴⁸

The independence of constitution and compact from the natural law not merely undermines one of the standard arguments for the existence of natural law, it also removes one of the props for the doctrine intimately associated with the law of nature in the thought of Locke’s most important recent predecessor, Grotius. According to Grotius, natural sociability and the law of nature are two sides of the same coin, more or less. Locke traces the grounds of compact not to the natural law but to “common human necessity or advantage.” Locke, in other words, opens up the possibility of a thoroughly individualistic interpretation of social life: human society does not imply natural sociability. Here Locke appears to break not only with Grotius but with Pufendorf as well, for the German thinker had insisted on the necessity of natural sociability in his attempted synthesis of Grotius and Hobbes.⁴⁹

Locke drives home the anti-Grotian and implicitly individualist bearings of his observations by introducing into Question VII a thoroughgoing critique of Grotius’s entire enterprise of a law of nations built upon a law of nature grounded on natural sociability. “It is clear,” Locke says, “that the common agreement on the treatment of envoys which has obtained among all nations is . . . positive agreement and does not imply a law of nature” (fol. 63). The right of envoys was, of course, a major theme in Grotius’s treatise, and although the Dutchman for the most part treated the relevant laws as derivative from the jus gentium and not from the law of nature itself,⁵⁰ yet the reason Locke provides against a natural law grounding the “treatment of envoys” speaks very broadly against Grotius’s doctrine as a whole: “By the law of nature all men should be friends to one another and joined together” (fol. 63). If, Locke is saying, the law of nature derives from and expresses the principles of human sociability, then the very division of mankind into separate and potentially warring nations is itself contrary to the law of nature. If so, then it makes no sense to derive a law of nations—which includes, among other things, rules for regulating the relations among separate and potentially or actually hostile nations—from the law of nature. The Grotian enterprise, in other words, is self-contradictory.

Locke suggests in this context, as an alternative to Grotian natural sociability, the possibility “that in the state of nature war is common, and there exists among men a perpetual, mutual, and internecine enmity” (fol. 63). This is, I believe, the sole reference to the state of nature in the Questions. Although Locke explicitly leaves it an open question as to which alternative view of the natural condition—a natural sociability or a natural separateness—is truer, nonetheless he quite unmistakably suggests that the latter view fits the phenomena better, including especially the phenomena of compact and legation.⁵¹

The fifth and final argument that Locke brings forward for inspection in Question I serves as a kind of culmination to the entire line of discussion those five arguments set off. “The fifth argument is that without the law of nature there would be no virtue or vice, no praise for probity or punishment for wickedness; where there is no law [there can be] no wrong, no guilt” (fol. 20). As stated, Locke clearly and decisively rejects this argument. As we have already seen, he traces human practices of identifying virtue and vice—praising and punishing them respectively—to forces quite other than the law of nature.

Yet, Locke says, “I hardly think that these opinions [about morals] are derived from nature, but they spring from some other source.” Even if they happen to coincide in content with the law of nature, nature is not their source: “Men are not instructed by nature, but by men” (fol. 42). Nature is not the source of the human positing of virtue and vice, and yet human beings regularly consider it to be, and thus are readily persuaded of the existence of a natural law. The moral instruction human beings receive is such that they easily fall into the error of attributing to nature what they come to believe as a result of the influence of other human beings (fol. 42):

These opinions concerning what is right and virtuous which we embrace so firmly are, for the most part, the kind which are infused into our minds, at an age when our minds are little on their guard, when we are still of a tender age, before we can yet form a judgment concerning them or notice how they insinuate themselves. They are instilled by our parents or teachers and by others with whom we associate. . . . And so, when these opinions have slipped into our minds in this way . . . without our noticing it, they take root in our hearts. . . . And they also strengthen their authority by the common custom, agreements and praise of those men with whom we associate. (fol. 43)

The result of this process of youthful social indoctrination is that “we think we must conclude, that, since we observe no other origin for them, these opinions are inscribed in our hearts by God and nature” (fol. 44). Along the way, Locke insinuates that “all hope for a future life” is acquired in the same manner (fol. 43).

Once these opinions of morality and religion have been acquired in this unwitting manner, there is a continuing reason to cling to them all the more firmly and to insist on their natural or divine origin. “And inasmuch as we establish these as rules in the daily course of our life, were we to doubt that these constitute the law of nature, we would be unsure both of our future life and repent of our past” (fol. 44). On moral matters, then, human beings commit a widespread theoretical error, but one with grave practical consequences for the way they shape their lives. “We embrace with all our might those opinions of our earliest youth, . . . set a high value on them, stubbornly believe in them”; and perhaps most relevant to Locke’s own enterprise, “nor do we suffer anyone to call them into question” (fol. 44).

Locke’s five arguments, then, do not persuade him of the existence of the law of nature, but they are designed to reveal to the attentive reader why Locke retreats from all versions of the immanent natural law of the tradition. At the same time, he shows how deep-going and, so to speak, natural it is for human beings to attribute their moral notions to nature, and how risky it is to do what Locke himself is doing, to question that attribution.

TRANSCENDENT NATURAL LAW

Locke does not refute the immanentist version of natural law for the sake of rejecting natural law altogether. He insistently identifies himself as a devotee of natural law. He rejects the traditional forms of natural law in favor of a new transcendent kind of law. Pufendorf had already paved the way, but Locke develops his version of natural law quite differently from the way taken by his distinguished predecessor. Locke’s natural law is transcendent because both the knowledge and obligatoriness of the natural law are absolutely dependent on rational knowledge of the existence and will of the transcendent God; the precepts or contents of the law are nowhere present in the world, but are available only to one who can ascend the heights of Locke’s rational proof. The law of nature properly understood has thus hardly been known among human beings prior to Locke, but, being firmly rooted in rational truth, it apparently remains a natural law despite the widespread or near universal ignorance of it.

The centerpiece of his doctrine of natural law is thus a rational proof for the existence of God, a proof that must establish not only that there is such a God, but that God has a will and what that will is. From the “wonderful art and order” of the world, Locke infers the existence of a “powerful and wise creator of all those things . . . to whom we are necessarily subject.” “Decidedly, the Creator has right and power” over us, for is not “the clay subject to the potter’s will,” and “cannot the pot be destroyed by the same hand that shaped it?” (fols. 54, 56, 58).⁵² It is this “potter’s sovereignty,” this “right and power” that is the source of the obligatoriness of the natural law, once we discover the Creator’s will. Since we infer the Creator’s wisdom from his creation, we can infer that God did not “make this world random and to no purpose.” God must “want man to do something”—he must have a will for humanity (fols. 59–60).

But how can we discover by our unaided reason what the Creator has willed? Locke’s answer is unfortunately very brief, but its general point is straightforward enough. “We can infer the principle of our duty and its certain rule from the constitution of man himself and the equipment of the human faculties. God’s will is that we use our faculties and that we honor God” (fol. 60). But whatever we do involves using our faculties, so this is less than determinate as a legal command. One can only wish Locke had said more about the reasoning by which the dictates of the natural law are to be derived from human faculties. At this point, for example, the Thomist appeal to the natural inclinations would seem relevant and helpful, but Locke has clearly cut himself off from Thomas’s version of teleology, even though Locke seems to be making some sort of teleological gesture himself.⁵³ That difficulty aside, however, it is clear how far Locke’s natural law teaching strays from the Grotian pattern and how much it rests on a critique of some of the most characteristic features of Grotius’s system, most especially the Dutchman’s conception of a nontheistic natural law and his refusal to equate the full moral good with the natural law.

Locke’s law of nature is entirely transcendent; it has no natural manifestation in the world. The burden of Locke’s Questions is to show that the natural law must be such a transcendent thing or no natural law at all. Only as transcendent can the natural law retain its quality as law, which requires both that the law be sufficiently promulgated and that it be properly binding. It must be promulgated—somehow rationally known or at least available—and yet Locke, in accord with his epistemological turn, insists that the law is not promulgated in the standard ways posited in the immanentist tradition. The transcendent natural law allows one to conceive the law as promulgated and yet to honor the facts about the moral dissensus and disobedience that Locke’s empirical investigations convince him are so pervasive. The transcendent natural law must also be obligatory; unequivocally tracing it to God serves, as we have noted, to find a source that promises to make it properly obligatory and not merely commendatory.

We are now in a position to state quite precisely Locke’s relation to his two most immediate predecessors on the issues of promulgation and obligatoriness. He differs from Grotius on both counts. Grotius’s thoroughly immanent natural law failed to adequately secure either one of the two key requirements. He premised promulgation only by distorting the facts; he never did supply an even vaguely satisfactory doctrine of the obligatoriness of the law. Pufendorf had fastened his attention on the latter problem; he had followed Hobbes in requiring that the law of nature be seen as transcendent for the sake of securing its obligatoriness. Locke endorses this move, but he extends it drastically in his far more searching treatment of the question of knowledge of the law of nature. The move leads him to jettison pretty thoroughly all Grotian remnants in the Pufendorfian synthesis.

Locke’s transcendent natural law gives him a position of security—intellectual, political, and moral—from which to launch what is really a devastating critique of the natural law as understood by his predecessors. Locke can be so critical of all the naturally immanent manifestations of natural law precisely because he stands on the very firm ground of his transcendent natural law, a law apparently unshaken by all the failures of promulgation he details.

Locke’s law of nature is “hidden” and “secret,” mostly if not entirely unknown by other human beings (fol. 33). It most definitely does not lie out in the open like Grotius’s law of nature, available for discovery by the interested observer in what most people praise or blame. But approaching the natural law in Locke’s own spirit, we must ask, Is a “hidden” or “secret” natural law really sufficiently promulgated? What if a human lawmaker followed the example of Caligula, “who had his laws written in small letters and posted at some distance above the ground”?⁵⁴ Surely such a practice would not count as adequate promulgation, and Locke’s hidden natural law bears a marked resemblance to it.⁵⁵

Locke argues, however, that the analogy is false. The widespread or even universal ignorance of the natural law is not an innocent ignorance, as it would be if the hiddenness of the natural law were the fault of the legislator. This universal ignorance is a blamable or guilty ignorance, for the natural law is accessible in principle to all rational creatures—or at least to the very intelligent who apply themselves assiduously to the task (fols. 15–16).⁵⁶

Not merely is it accessible to human reason, but there is an obligation to make use of human faculties in order to discover it. Accessibility to human effort is not sufficient to make human beings blamable for their own ignorance; they must have a duty to engage in the search. Otherwise their ignorance of the natural law is no more blamable than, say, their ignorance of astrophysics. As Locke says, “Some make no use of the light [of nature] but love the darkness . . . . They are nurtured in vices and scarcely distinguish between good and evil” (fol. 16; cf. fols. 34–36). Human beings fail to discover the natural law, fail even to engage in the open-minded and fully devoted search for it, for morally blamable reasons. They turn their backs on their duty to find the law.

This moral blameworthiness makes human ignorance the fault of human beings; in this case, ignorance is no excuse for disobedience. This almost willful ignorance, afflicting all or almost all human beings, prevents them from engaging in the Lockean reasoning about God and nature that establishes the natural law on its proper foundations and in its proper content. Universal ignorance does not imply that the law has not been sufficiently promulgated.

Yet to claim that ignorance of the natural law is guilty ignorance is to imply that human beings can be pronounced guilty and blamable prior to their knowledge of the natural law. Locke shows us, in other words, that there is a deep incoherence in the idea of transcendent natural law. The natural law must be already binding (meaning promulgated and known) in order to effectuate its promulgation. It must be binding or promulgated before its promulgation. The immanent natural law as understood in the tradition is untenable; as Locke shows, the revised version, the transcendent natural law, is equally so.⁵⁷

Locke further shows that the law’s obligatoriness can be no more established on the basis of the reformulated natural law than it could be on the basis of the immanent natural law. Obligation to law must derive from the law’s origin in the will of a superior—in the case of natural law, in the will of the creator-God. In a number of different ways, however, Locke severely undercuts the authoritativeness of the creator-God. At a key place in his proof for the existence of God, Locke purports to demonstrate that man must be created by God because

if man were creator of himself, someone who could bring himself into the world, he would also have granted himself an eternal duration for his existence. . . . For it is impossible to imagine anything so hostile and inimical to itself which, though it could grant itself existence, would not at the same time preserve it, or which would be willing to readily abandon it once the course of its brief life had been spent; without life, all other things, dear, useful, pleasant, blessed, cannot be preserved and are sought in vain. (fol. 55)⁵⁸

Human mortality is an expression of “hostility” and “inimicability.” It is the gift of an enemy. One of two things must be true: there is no such creator-being as Locke has posited, or there is such a being and it is hostile to humanity. Whichever is true, the Lockean natural law cannot exist, for either way one destroys the premise-in-chief for the natural law—that there is a superior whose will we are obliged to obey by right. A supremely powerful enemy may force us to obey, but he cannot oblige us to obey. We would appear to arrive at the unavoidable conclusion that there is no natural law, were it not for a yet unnoted dimension of Locke’s treatment of the relation between human beings and their alleged Creator.⁵⁹

Locke does not treat the claims of the Creator to obedience as claims exclusively rooted in the benevolence of the Creator. He insists on the Creator’s power: the potter surely has the power to crush the pot. His notion of subjection to the Creator seems not to be an entirely moral subjection. If there is a Creator who stands to his creation as a potter does to his pots, then surely he can impose whatever conditions he wills for the continued existence of his creatures. The obligatoriness of the law of nature strictly follows from the fact that the Creator can or does attach sanctions to the law. The sanctions not only potentially supply a motive for obeying the law, they constitute the very obligatoriness of it: no sanctions, no law.

Yet as Locke makes clear in his voluminous arguments against the immanent law of nature, the sanctions are not in any evident manner attached to the happenings of this world. Thus, toward the conclusion of his demonstration in Question VII of the lack of consensus on morals, Locke notes that “immortality of the soul . . . must . . . necessarily be assumed for the existence of the law of nature” (fol. 16). Some readers have found Locke’s introduction of a new criterion of law into his work at this late stage to be puzzling, but it follows from the necessities of his transcendent law.⁶⁰ In this very place Locke points out that human opinions are as diverse regarding the question of immortality of the soul as they are regarding other matters relevant to the law of nature. If there is natural knowledge of immortality of the soul, a prerequisite of the law of nature’s being natural, by analogy with the rest of his argument from dissensus it must be demonstrative and not inscribed or innate in any sense (fol. 76). But in the decisive place, Question V, where Locke presents a demonstrative argument regarding God and the content of the law of nature, he makes no effort to include a demonstration of the existence of an afterlife, which could serve as sanction for the law of nature. Perhaps he is foreclosed from such an argument by his suggestion in Question V that God is hostile to humanity. In any case, what Locke later says quite explicitly in his Essay Concerning Human Understanding and The Reasonableness of Christianity is entirely consistent with what he implies but leaves unsaid in the Questions: reason cannot establish the existence of an afterlife.⁶¹ With reason’s failure to establish immortality of the soul falls the transcendent natural law. No more than the immanent law can the transcendent law satisfy the all-important dual requirements of promulgation and obligatoriness.

If there is no natural law, are human beings left with no natural guidance whatever? Early in his essay Locke had contrasted the natural law with natural right. “This law [of nature] should be distinguished from natural right; for right consists in the fact that we have a free use of something, but law is that which either commands or forbids some action” (fol. 11). If there is no natural law, properly speaking, no limit human beings are naturally obliged to keep, then it would seem to follow that they possess by nature the opposite, a natural right of “free use.” Although Locke can find no evidence of natural law, i.e., command or prohibition of actions, he does not find that nature has left human beings entirely without guidance. Locke does not deny that there are natural inclinations, he denies only that these are directed to the natural law as taught in the tradition. Instead, he shows, they point to self-preservation, or more broadly, self-interest. “Human beings are impelled to this . . . and more than impelled, by an inner instinct” (fol. 61; cf. fol. 14). Like Carneades before him, Locke is impressed with the fact that nature’s guidance leads not to justice or the common good, but to “one’s own advantage” (see fol. 42). That is probably why Locke lavishes so much praise on Carneades (even while appearing to disagree with him): “[His] extremely acute intelligence and [his] powerful eloquence left nothing intact, virtually nothing unshaken” (fol. 105). To say that human beings are driven by nature to seek their preservation, and to say that there is no natural law, is to say that people are endowed by nature with a permission (a right) to pursue that goal toward which nature willy-nilly drives them. Human beings, in other words, begin with a natural right to life (see fol. 82).

If the driving force for human beings is their “instinct for preservation,” then their defining or driving quality is not their rationality or sociability, à la Grotius, but their mortality. It is no accident that in the key place in his “proof” for God Locke emphasizes human mortality and the inimicality that implies if some intelligent being is responsible for it. Locke not only breaks with Grotius, therefore, but with Christian political thought as exemplified by Milton’s approach to the Fall and redemption.

To say that Locke’s argument, extrapolated along Lockean lines, leads to the natural right to life as the ground might seem to contradict Question XI.⁶² Locke there considers the question “Does the private interest of each individual constitute the foundation of the law of nature?” He answers the question in the negative; since the natural right to life is a “private interest of each individual,” this Question does seem to counter the position taken thus far. But Question XI is far from straightforward. It begins, as I have noted already, with reference to the doctrine of Carneades and with an implied promise of a refutation of the ancient skeptic. (Worth noting is that Locke clearly takes over the reference to Carneades from Grotius; also worth noting is the fact that Grotius responds to Carneades at the outset of his treatise, and quite forthrightly, whereas Locke raises the specter of ancient conventionalism only at the end.) Instead of attempting to refute Carneades, Locke praises him and turns his philosophic powers against a rather different position. Carneades had argued, it will be recalled, that “there exists no law of nature, or, were such a law to exist, it would constitute the height of folly, since . . . both humans and animals are moved to their own advantage at nature’s guidance” (fol. 105; cf. fol. 112).⁶³ Locke, it must be repeated, does not directly attack Carneades’ own position, which, as far as it goes, bears a partial resemblance to what he himself has argued thus far. Instead, he reformulates the issue as follows: “whether what each private individual judges to be useful to himself and to his own affairs as the occasion arises conforms to the law of nature and, by this title, [whether] it is not only lawful for him but even necessary” (fol. 108). Locke thus substitutes for Carneades’ rejection of so-called natural law, on the ground that nature guides toward self-interest, a quite different doctrine—that human beings are obliged by natural law to pursue only their own interest. That, of course, is not what Carneades had argued for, nor is it what Locke’s own arguments had established. Locke easily and decisively refutes this new natural law teaching, but that refutation reaches neither Carneades’ nor his own earlier arguments.

We can best capture Locke’s critique of this “neo-Carneadeanism” in terms of the conceptual distinction between right and law developed in Question I. The “neo-Carneadeans” turn self-interest into natural law, that is, into a morally obligatory mandate, whereas Locke showed it to be a right, a morally permissible liberty. According to the neo-Carneadean natural law, it would be morally unlawful to renounce one’s pursuit of self-interest for any reason; according to the Lockean natural right, it would be perfectly permissible to renounce immediate self-interest for longer term self-interest, or even for the sake of the common good. Lockean natural right would be perfectly compatible, for example, with “a compact, either tacit . . . or expressed,” aimed at achieving “some common human necessity or advantage.” Such compacts may establish rules of conduct placing moral limits on human actions, limits that may look very like the precepts of the traditional natural law, but they do not “prove the existence of a law of nature at all . . . and issue from no principle of nature whatsoever” (fol. 63).⁶⁴

Observance of those law-of-nature-like rules is conducive to one’s self-interest; indeed, “nothing is as conducive to the common advantage of the individual, nothing so protective of the safety and security of men’s possessions” as that observance. “From the keeping of this law peace arises, concord, friendship, freedom from punishments, security, the possession of our own property, and, to embrace all these in a single word, happiness.” None of these goods can arise, however, unless the natural-law-like rules are kept, and that cannot be if human beings are free, much less obliged, to obey or not as they decide in each instance on the basis of a calculation of “present advantage.” For the law to serve interest, interest cannot be the “foundation of law or basis of obligation” in the way neo-Carneadean doctrine tries to make it (fols. 108, 117, 118, 119).⁶⁵

The necessity for natural-law-like rules provides the key to Locke’s odd procedure in the Questions. He both reveals and conceals the failure of the natural law tradition. He reveals that failure without admitting that is what he is doing; he reveals it while continuing to say he is adhering to the tradition. Locke, in other words, is somewhat deceptive, but the reason for his deception is not far to seek. Whatever its defects, the natural law tradition has something crucial to say, and Locke does not want to demolish its hold on the minds of his compatriots. Nature may guide human beings to pursue their own advantage, but the result of a “natural” life is not pretty. Those human beings who have “no guide other than nature” are discussed by Locke in Question IV:

How far removed are the morals of these men from virtue, how alien are they to any sense of humanity! Nowhere is there such fickle faith, so much perfidy, such monstrous cruelty; and, by murdering men and shedding kindred blood, they sacrifice both to their gods and to their own “genius.”

Those people who live exclusively under the guidance of nature “spend their lives wretchedly in rapine, theft, debauchery, and murder.” They do not, in a word, achieve that “happiness” promised by the natural-law-like-rules Locke endorses (fol. 41; cf. fols. 116–19).⁶⁶ In other words, morality, more or less of the sort endorsed in the natural law tradition, is part of the answer to the problem nature poses for human existence. Thus Locke wishes to retain the law of nature, or some version of it, at the same time that he levels a very powerful theoretical critique against it.

Locke wishes to retain the natural law, but at the same time he transforms it. Morality in the post-Lockean version is in the service of natural right and derivative from it, rather than primary and underived. Morality is not the first principle of human action, as the Thomists and Grotius had it. The ground of “natural law,” or morality, is now understood by Locke as natural right, and therefore the main requirements of morality can be restated in terms of rights. It becomes possible, for example, to formulate the purpose of political life entirely in terms of the mandate “to secure these rights.”

Morality continues to be required, but its content is subtly redefined. The primary precept becomes Respect the rights of others. Duties to others can be captured in these terms, and other desirable moral qualities can be understood as suitable means to producing a society in which habitual rights-respecting occurs. One example of this kind of redefinition occurs in the Questions. Locke at one point launches an almost passionate tirade against the Romans as bellicose predators: “The Romans themselves, who are held up as having displayed examples of virtue for the entire world, how did they acquire for themselves honors, triumphs, glory, and an immortal memory for their own name, if not from robbery and rapine by which they laid the entire world to waste? What else is that great ‘virtue’ so celebrated among them with so many panegyrics, what else is it, I ask, but violence and wrong?” As Locke puts it in his Second Treatise, his new moral understanding favors not the bellicose Romans but “the industrious and rational” (fol. 71).⁶⁷ A substantive moral shift follows from Locke’s new understanding of the nature of morality.

As should now be clear, Locke rejects the natural law doctrine of Grotius, but he comes to rest at a place where his doctrine and the Dutchman’s overlap considerably—on the centrality of rights and the importance of compact. It would not be too much to say that Locke and Grotius differ entirely, but in their difference is a similarity that allowed the Grotian natural law to prepare the ground for Locke. The Questions was not, of course, the vehicle on which Locke rode to his Whig ascendency, and therefore it does not express exactly the historical form in which Locke supplanted Grotius. The important negative themes of the Questions were carried forward in the Essay Concerning Human Understanding, while the construction of an alternative (to) natural law teaching was most visibly presented in the Second Treatise.