Natural Law, Natural Rights, and American Constitutionalism Classical and Medieval Sources of Natural Law Home Document

Archive Document Timeline Print PDF ARISTOTLE, NATURAL LAW, and the FOUNDERS Michael Pakaluk, Ave Maria University Aristotle did affirm the existence of a law of nature, but he was admired by and influenced the American Founders more for his related views on republican government and the rule of law. Some of the Foundersnotably, John Adams and James Wilsonrefer frequently to Aristotle and show a deep acquaintance with his Politics. Moreover, Aristotle generally enjoyed an authority among the Founders like that which he had exercised over the learned world for centuries beforehand. A passage from Wilsons treatise, Of the General Principles of Law and Obligation, is illustrative: Why should a few received authors stand up like Herculess columns, beyond which there should be no sailing or discovery? To Aristotle, more than to any other writer, either ancient or modern, this expostulation is strictly applicable. Hear what the learned Grotius says on this subject. Among philosophers, Aristotle deservedly holds the chief place, whether you consider his method of treating subjects, or the acuteness of his distinctions, or the weight of his reasons.[1] Aristotle was regularly included by the Founders in their lists of reliable and authoritative political philosophers. When asked once what was the philosophy underlying the Declaration of Independence, Jefferson replied that: All its authority rests on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.[2] John Adams similarly wrote that the principles of the American Revolution are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke; the principles of nature and eternal reason; the principles on which the whole government over us now stands.[3] Indeed, Aristotle was credited as the original source for many doctrines generally affirmed by the Founders, including the following five: 1. government should govern for the good of the people, not for the good of those in power; 2. there is a natural aristocracy, and skilled statecraft arranges things so that this element acquires authority, or, failing that, blends democratic and oligarchic influences in society to approximate to that outcome; 3. mixed regimes are better than pure regimes, because they are more stable;

4. the best form of government in nearly all circumstances involves the balancing of aspects of all three pure regimes (kingship, aristocracy, and timocracy); 5. a pure democracy can easily turn into a tyranny of the majority. However, the teaching of Aristotle that was most admired by the Founders was his insistence upon the rule of law, especially as stated in a passage from the Politics, where law is said to be reason or intelligence (nous), free from passion, and, as it were, the governance of God.[4] Their imagination in this regard seems to have been captured by several passages that indicate a conception of the institution of the rule of law as akin to the institution of the Kingdom of God. As James Harrington wrote: But that we may observe a little farther how the Heathen politicians have written, not only out of nature, but as it were out of Scripture: as in the commonwealth of Israel God is said to have been king; so the commonwealth where the law is king, is said by Aristotle to be the kingdom of God. And where by the lusts or passions of men a power is set above that of the law deriving from reason, which is the dictate of God, God in that sense is rejected or deposd that he should not reign over them, as he was in Israel.[5] Similarly, Algernon Sidney argued: The most generous nations have above all things sought to avoid this evil [of being governed by the mere will of a man]: and the virtue, wisdom and generosity of each may be discernd by the right fixing of the rule that must be the guide of every mans life, and so constituting their magistracy that it may be duly observed. Such as have attained to this perfection, have always flourished in virtue and happiness: They are, as Aristotle says, governed by God, rather than by men, whilst those who subjected themselves to the will of a man were governed by a beast.[6] One finds John Adams, for instance, echoing Harrington and Sidney, but attributing the thought to Aristotle: Aristotle says, that a government where the laws alone should prevail, would be the kingdom of God. This indeed shows that this great philosopher had much admiration of such a government.[7] By the rule of law, Adams and the Founders did not understand the mere consistency or predictability of law and procedure (although it would necessarily include that); rather, the rule of law involved also the consistency and harmony of human law with the law of nature which is why they could so easily conceive of the rule of law as being the rule of God. Here we find a deeper relationship between the Founders and Aristotle, since they conceived of his political philosophy as sound precisely because, as they believed, it was drawn from nature and based on the principles of nature and of eternal reason. The spirit of this way of looking at Aristotle may be seen in a passage from Harrington, who is arguing against the view of Hobbessimilar to that of most commentators on Aristotle in our own daythat Aristotle in his political and ethical theory is doing no more than systematizing the received and conventional opinions of his time. Harrington replies:

for Mr. Hobbes to say, Aristotle and Cicero wrote not the rules of their politicks from the principles of nature, but transcribed them into their book out of the practice of their own commonwealths, is as if a man should say of the famous Harvey, that he transcribed his circulation of the blood, not out of the principles of nature, but out of the anatomy of this or that body.[8] In other words, Aristotle of course had to rely upon particular examples from his own time and experience, and yet this did not preclude his discerning, from these examples, general principles based upon the nature of things. So much for how the Founders viewed Aristotle: but what did Aristotle himself think? In particular, were the Founders correct, and did Aristotle view himself the way the Founders viewed him? To answer these questions, it is necessary to explain what Aristotle meant by law of nature and natural justice. By a claim of justice (a claim about to dikaion, what is just), Aristotle understood a statement about what should be the case, which was justified by appeal to some standard of equality: this should be so, because if it is so, then there will be equality of such-and-such kind. He believed that there were different types of equality, relevant to different types of claims of justice, and that, most commonly, claims of justice would appropriately appeal to the standard he called proportionate equality.[9] For instance, you supply 80% of the capital for a business, and I supply 20%, and therefore (one might claim, appealing to proportionate equality) we should share in the profits of the business in the same proportion. We remain equal relative to each other if we do so share in the profits (it is claimed), but become unequal if we do not. It can be seen that in proportionate equality, something serves as the basis of the claimthere is some reason why we think that things should be allotted or assigned in proportion to some other thing, and typically this reason goes beyond the mere fact that something was decided or previously agreed to. For instance, in the example, when the profits are to be shared, and the partners share those profits in the proportion indicated, they might be able to explain this by appeal to an earlier agreement, if they had been explicit about it in forming the partnership: Well split the profits 80/20, as originally agreed. But it can happen that the partners never made any explicit agreement, and then the reasonability of such a distribution has to stand on its own. Or even if they had agreed to an 80/20 distribution, there was a reason why this had originally seemed fair to them, and that it was something that they thought they could agree to and abide by. In such cases what people are really relying upon is some principle about the nature of work or of a businessthey might, for instance, conceive of capital as being like effort or power, and think that people should share in the profits in proportion to the effort they expend. By natural justice, Aristotle understood an equality (typically a proportionate equality) that would be justified, ultimately, by appeal to something other than an agreement or decision; it is an assignment or allotment that is justified by appeal, somehow, to the nature of things involved in a relationship or transaction. In contrast, conventional justice is an equality justified, ultimately, by appeal to nothing more than a decision or agreement.

For Aristotle there is a very close connection between justice and law, so much so that he is willing to say that the general virtue of justice may be alternatively described as lawfulness.[10] The opposition commonly drawn between natural justice (or natural right) and natural law is therefore unwarranted in the case of Aristotle.[11] The reason is not difficult to see: particular judgments about what is equal (just) immediately imply corresponding generalizations, since there would be no reason why similar cases should not be decided in the same way. That this allotment should be 80/20 implies that similar cases should have similar allotments. Thus, on Aristotelian terms, a law is by nature if the equality which it aims to ensure is such that it is justified by appeal to something other than an agreement or decision. Similarly a law would be contrary to nature if it forbade equalities which a law which was by nature would aim to effect, or if it commanded corresponding inequalities. Not that this notion of by nature is trivial or irrelevant. In Aristotles political thought, for instance, it serves as the basis for his criticism of Platonic communism[12]: communism is against nature because it forbids distributions of the sort that one would regard as equal if one were attending to the nature of the beings involved, since by nature we should favor more what is more akin (oikeion) to us. Again, because of the equality by nature of human beings, if there is no individual in a commonwealth so distinguished in virtue that it would be best to confer kingly authority upon him, then the government which best accords with the nature of the beings who compose a commonwealth would be one in which citizens took turns in ruling and being ruled.[13] By a law of nature, then, Aristotle does not mean statutes, or a system of rules, discernible by intellectual perception; rather, what he means are recurring equalities or inequalities in the nature of things, which, he considers, serve to justify general claims involving the distribution of things and actions. Three important things should be noted about a law of nature in this sense: First, Aristotle thinks that a law of nature may appropriately be invoked as grounds for disobeying a human law which contravenes it, since the law of nature has the higher authority. This is clear from his favorable reference to the Antigone of Sophocles and his willingness to contemplate jury nullification in the Rhetoric.[14] It is unclear from the text on what grounds Aristotle held that a law of nature has the higher authority; but we may speculate that his view here is connected with his views expressed elsewhere that the ultimate causes of nature are divine, and that human artifice should assist or complete nature rather than subvert it.[15] Second, it may reasonably be wondered why, if something is a law of nature, it is not recognized and followed universally by human beings. In fact no prescription seems to be acknowledged by all cultures and times, not even Do not murder. The puzzling language of the Nicomachean Ethics, which defines nature as something that has the same force or influence in all times and places, suggests how Aristotle would deal with this problem.[16] His view seems to be that nature, for its part, invariably suggests to us the appropriateness of framing certain precepts (viz. concerning what is just by nature), but we, for our part, need to have the appropriate sensitivity to this influence. For example, on this view we frame a precept of the form, Do not murder, and say that this is just by nature, in view of our being sensitive to the nearness and dearness of each human being to every other.[17] This nearness and dearness is an objective reality about our similarity and potential reciprocal relationships with members of the

same kind; yet we may fail to be sensitive to this reality. We do not, of course, merely intellectually perceive that human beings are near and dear to one another; rather, we sense or feel this ourselves, which is to say that we are inclined to regard anothers good as our own good, and we are prepared to act to protect and promote it. Yet it can happen, in some cultures or circumstances, that our sensitivity is suppressed or deformed, and in those unusual conditions the precept Do not murder will either not be articulated by us or will fail to have force. In such cases it is not nature that has changed, or the law of nature; nature remains the same, but we have failed to respond adequately to it, through a failure of sensitivity. Third, it seems to be Aristotles view that a law of nature or what is just by nature never has an effect on our actions without some admixture of the conventional and the arbitrary. No precept is purely natural; all precepts are framed with a view to an application to particular circumstances, and for this something arbitrary will be required. Aristotles helpful example is of the difference between wholesale and retail measures: in all times and places, people use larger measures in wholesale markets than in retail; they do this in view of the nature of the casethe wholesale market involves a higher-level distribution of goods for sale, and therefore it calls for larger measuresand in this sense by nature wholesale measures are larger than retail; nonetheless, which measures to use at each level is purely a matter of convention: e.g. kilograms rather than pounds, and grams rather than ounces. In general, the definition of natural found in the Nicomachean Ethics, V.7 shows the wrongness of a common view about Aristotle and natural law: It is often claimed that Aristotle could have had no notion of a natural law, because he was still philosophizing in a context, evident in the Sophistic Movement, in which nature (phusis) and law (nomos) were contrasted and held to be incompatible. Only with the supposition of a God who is both a lawgiver and the governor of naturea supposition which became common after the rise of Christianitydid it make sense to conceive of a natural law (or so the objection goes). But the passage from the Rhetoric, I.13 shows that Aristotle had no difficulty conceiving of a natural law or using language along those lines, and we have explained what he meant by this and how it was open to him to think in this way. What is additionally interesting about the discussion of what is natural is that it shows Aristotle arguing that, far from being incompatible, the natural and the conventional are almost indistinguishably intertwined in human practical reasoning and law; in fact, this is a distinguishing characteristic for Aristotle of distinctively human as compared with divine justice. Today natural law theories are sometimes taken to be distinctive insofar as they attempt to provide for and justify the claims that (i) human law in certain circumstances is null and void (lex iniusta non est lex) and also that (ii) there are actions which, because of the kind of action that they are, are never to be done whatever the consequences (so-called moral absolutes or actions per se malum). The two aspects are related: the way in which a precept most commonly gets dispensed with is by being overruled; thus a precept of the highest authority about a sufficiently plain matter of equality or inequality, one would think, would lack exceptions. Aristotle seems to be disposed to recognize moral absolutes corresponding to laws of nature: for instance, given his sympathies with Antigone, one would think he would regard bury ones blood relation as that sort of absolute prescription, to be followed except when it is impossible

to do so. Also, it is interesting to note that Grotius, influential on the Founders in their understanding of Aristotle, similarly interpreted a passage in Aristotles Ethics[18]: the Law of Nature is so unalterable, that God himself cannot change it. For tho the Power of God be infinite, yet we may say, that there are some Things to which this infinite Power does not extend, because they cannot be expressed by Propositions that contain any Sense, but manifestly imply a Contradiction. For Instance then, as God himself cannot effect, that twice two should not be four; so neither can he, that what is intrinsically Evil should not be Evil. And this is Aristotles Meaning, when he says, ,&c. Some Things are no sooner mentioned than we discover Depravity in them. For as the Being and Essence of Things after they exist, depend not upon any other, so neither do the Properties which necessarily follow that Being and Essence. Now such is the Evil of some Actions, compared with a Nature guided by right Reason. Therefore God suffers himself to be judged of according to this Rule.[19]

[1] Wilson, Of the General Principles of Law and Obligation, I.ii.2266. [2] Jefferson, Letter to Henry Lee, May 8, 1825. [3] Adams, Novanglus, No. 1. [4] Please refer to Politics, III.16, 1287a8-32 (III.16) in the Primary Source Documents section of this website. [5] Harrington, Oceana, The Preliminaries. [6] Sidney, Discourses concerning Government, section 15. [7] Adams, Works on Government, ch. IV, Opinions of Philosophers. [8] Oceana, Politicaster. [9] Nicomachean Ethics V.2. [10] see Nicomachean Ethics, V.1 [11] See e.g. Richard Tuck, Natural Rights Theories, Cambridge, CUP 1982. [12] See Politics, II. [13] Politics, III.10-11.

[14] Please refer to the selections of the Rhetoric, I.13, 1373b2-17 and I.15, 1375a25-b8, which reference Antigone and jury nullification respectively. They can be found in the Primary Source Documents section of this website. [15] See Physics, II.8. [16] Please refer to Nicomachean Ethics, V.7, 1134b19-1135a5 in the Primary Source Documents section of this website. [17] See Nicomachean Ethics, VIII.1. [18] For the excerpted text of this passage, please refer to the Nicomachean Ethics, II.6, 1107a817 in the Primary Source Documents section of this website. [19] Hugo Grotius, The Rights of War and Peace, Vol. 1, Chapter I: What War is, and what Right is. Copyright 2012 The Witherspoon Institute. All rights reserved.

Aristotle Educational Materials Primary Source Documents

Classical & Medieval o Plato o Aristotle o Cicero o Aquinas o Late Medieval Transformations Early Modern American Constitutionalism Contemporary Critics

Amidst the turmoil of the 17th-century Wars of Religion and the Enlightenment, the political philosopher Thomas Hobbes disputed premises of classical notions of natural law and a new philosophical discourse emerged that of natural rights. While philosophers from Aristotle to Aquinas had generally accepted the premise that man is inherently a social being whose natural state is political, Thomas Hobbes proposed quite a different view. He posited that the human state of nature is solitary and characterized by constant, chaotic warfare in which each man is pitted against every other in a struggle for survival. Though his intellectual successors would not have so bleak a view of the state of nature, the notion of individuality characterized the Early Modern understanding of human nature. Hobbes also rejected the idea from Aristotle that mans nature is teleological (i.e. ordered toward a particular end or purpose). Whereas Aquinas had argued that the human person is directed to one ultimate end, namely God, Hobbes conceived of man as being in ceaseless motion with no particular end, whether natural or supernatural. Consequently, a government could not exist for the sake of instructing man in virtue. Instead, for thinkers such as Hobbes and John Locke, government had the exclusive task of protecting mans natural rights, foremost among these being the right to self-preservation. In lieu of the classical notions of human nature informing the purposes of government, Hobbes and Locke developed theories of social contract, proposing that men form society (and consequently government) in order to obtain the security, prosperity, or conveniences impossible in the state of nature. While most natural-rights thinkers agreed that rational social order should be understood first as a contract to secure natural rights, they differed as to how these rights should be enumerated, whether they were truly inviolable, what political structures were needed to protect them, and how far these rights of the individual were tempered by duties towards others. While Montesquieu emerged as a moderate thinker within the natural-rights tradition, the English Whigs became a dominant, radical force. They argued most vehemently that the authority of the government is constituted by the consent of the governed, precisely because governments find their origin in the social contract. Following from this premise, they advocated constitutional limits on government and strict delineation of powers to insure the protection of individual rights. These were the ideas that were to influence and inspire the American revolutionaries and the Founders of a new Republic.

For many centuries, natural law was recognized as a type of higher law that spelled out universal truths for the moral ordering of society based on a rational understanding of human nature. As a higher moral law, it gave citizens a standard for determining if the written laws and customs of their nation or any other nation were just or unjust, right or wrong, humane or inhumane. Today, natural law is not discussed very much, at least not explicitly. When mentioned at all, it is usually rejected as dangerous because it undermines existing laws or as intolerant because it is contrary to multiculturalism, which requires the non-judgmental acceptance of other cultures. This negative view of natural law can be traced to Thomas Hobbes (15881679), whose writings are largely devoted to showing the anarchy and civil wars caused by appeals to natural and divine laws above the will of the sovereign. Hobbes rejected traditional higher law doctrines and encouraged people to accept the established laws and customs of their nations, even if they seemed oppressive, for the sake of civil peace and security. His critique has been a leading cause of the demise of natural law and the acceptance of positive law as the only reliable guide for political authority. One may be equally surprised to learn, however, that many people today embrace a different (and seemingly contradictory) view of natural law, and this too is traceable to Thomas Hobbes. For example, when conscientious people are confronted with violations of human rightsas in religious theocracies that violate womens rights or in countries that allow sweatshops to trample on workers rightsthey feel compelled to protest the injustice of those practices and to change them for the better. The protesters usually deny that they are following natural law, but they obviously are asserting a belief in universal moral truths that are grounded in human naturein this case, the natural equality of human beings that underlies human rights. This understanding of higher law originates with Hobbes because he was largely responsible for transforming classical natural law into modern natural rights, thereby beginning the human rights revolution in thinking on natural law. How is it possible for Hobbes and his followers to embrace seemingly contradictory views of natural law, rejecting one form as intolerant, self-righteous, and anarchical, while embracing another form as the universal ideal of social justice? Let us turn to Hobbes for an answer to this puzzle, and, in so doing, uncover the sources of our modern conceptions of law, rights, and justice. The key to solving this puzzle is Hobbess famous statement about the desire for power in Leviathan: So that in the first place, I put for a general inclination of all mankind, a perpetual and restless desire for power after power, that ceaseth only in death. What Hobbes means by this sweeping claim is that human nature consists of ceaseless motion without a natural end that constitutes happiness or felicity; hence, Hobbes says, there is no Finis Ultimus (utmost aim) nor Summum Bonum (greatest good) as is spoken of in the books of the old moral philosophers. . . . Felicity is a continual progress of the desire, from one object to another.[1] Hobbess denial of the greatest good is the crucial point of disagreement with the old moral philosophers, Aristotle and Thomas Aquinas, who expounded the classical natural law doctrine. According to the classical view, man is a rational and social animal who has a natural inclination to his proper end, happiness, which can be attained by the virtues or the perfections of mind and

character. Classical natural law was therefore teleological: directed to the natural end of human beings and to the good life of virtue in a just political community. Hobbes rejects the teleological view of human nature as a false and dangerous illusion. Instead, he sees human nature as the restless striving for power after power that has no end and therefore no happiness or perfection. The rejection of end-directed motion underlies Hobbess revolution in thinking from classical natural law, and its perfectionist principle of virtue, to modern natural rights, and its minimalist principle of self-preservation. One argument that Hobbes uses to justify the rejection of natural teleology is metaphysical: the theory that only bodies in motion are real and that man is a complex machine moved by mechanical responses to images of external objects. This view is developed in Leviathan, Part I, which gives the materialist account of man as a creature of appetites and aversions: seeking pleasure, avoiding pain, and desiring power after power. The materialist account supports the view that no natural end for man really exists, only the ceaseless motion of a complex machine. The materialist account also strengthens the case against the Aristotelian-Thomistic view of man as a rational and social animal naturally suited by language and friendship to live in a political community. Hobbess model shows that human beings are selfish, competitive, and anti-social, and that they are rational only insofar as reason serves the selfish passions. The logical conclusion is Hobbess state of nature teaching, which describes the anarchical condition of individuals without an artificial social contract and a coercive sovereign to hold them together. The mechanical model of man, however, is not sufficient to refute classical natural law. Hobbes develops a second argument based on moral experience, showing that human beings are motivated not only by pleasure and power but also by vanitya false estimate of ones superiority to others. In historical writings, Hobbes shows how the passion of vanity has undermined traditional political authority where kings have relied on higher law to gain obedience from the people. The defect of this arrangement is that traditional higher law doctrines are easily exploited by vain and ambitious men who claim superiority to the sovereign because of privileged knowledge of divine, natural, and common law. Hobbess account of the English Civil War (164260) in Behemoth illustrates the problem: King Charles I was overthrown by Puritan clergymen, democratic Parliamentarians, and lawyers of the common law who sought recognition for their superior knowledge of higher law, yet who could not agree among themselves about whose doctrine was right, producing sectarian wars that reduced English society to the anarchic state of nature.[2] From this frightening analysis, however, Hobbes draws a hopeful lesson: if higher laws are not equated with intangible goods like virtue, wisdom, and salvation, then the ills of civilization can be avoided and mankind can enjoy enduring civil peace. Herein lies the crucial move in Hobbess shift from classical natural law to modern natural rights: the idea of the greatest good is a dangerous illusion because it is vain, unreal, and never produces agreement; but the minimal good of avoiding death is the strongest, most real, and most universal passion: for every man is desirous of what is good for him, and shuns what is evil, but chiefly the chiefest of natural evils, which is death.[3] In other words, natural law is false and dangerous when it encourages illusory notions of superiority and implies duties to perfect citizens characters or to save their souls; but natural law is the solution to civilizations ills when it is defined as the natural equality of all human beings and the dictate of right reason to avoid

death or to preserve ones life. The implication is that the root of justice is not a duty but a right . . . the fundamental and inalienable right of self-preservation.[4] This shift underlies Hobbess famous re-definition of natural law: A Law of Nature is a precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life or which takes away the means of preserving the same. . . . For though they that speak of this subject used to confound jus and lex (right and law), yet they ought to be distinguished, because Right consists in liberty to do or forbear, whereas Law binds to one of them; so that law and right differ as much as obligation and liberty.[5] From the new definition of natural law as a right or liberty to preserve ones self, Hobbes deduces nineteen commands, such as seek peace; lay down the right to all things and transfer power to a sovereign; obey the social contract; promote the attitudes conducive to civil peace (such as gratitude, forgiveness, avoidance of pride, treating people equally, and acceptance of arbitration and impartial judges). Hobbes acknowledges that these moral attitudes are social virtues, but they are aimed at the minimal good of civil peace rather than the perfection of mind and character; they also make obedience to positive law the primary duty of natural law, removing any pretext for rebellion in the name of higher law.[6] The influence of Hobbess new doctrine has been profound but largely indirect because of the notorious reputation he acquired as an atheist materialist and advocate for absolute monarchy over constitutional government. While Hobbess name was justly decried, he convinced many people in the seventeenth and eighteenth centuries to change their views of the proper ends of governmentfrom promoting the higher goods of virtue and salvation to protecting the limited goods of life, personal liberty, and propertyinaugurating the natural rights principles of modern liberalism that became the basis of an enlightened middle-class materialism or bourgeois view of morality.[7] Hobbes never took the step of later liberal thinkers of advocating constitutional limits on state power as the best means for securing life, liberty, and property because he was convinced that fear of the sovereigns absolute and arbitrary power was the only way to keep people in line. Yet, once the shift to limiting the scope of government to the security of rights was widely accepted, a movement away from the absolute monarchy favored by Hobbes to the constitutionally limited government favored by Locke, Hume, Montesquieu, and the Federalist was the logical outcome of the Hobbesian revolution from classical natural law to modern natural rights. [8]

Endnotes

[1] Thomas Hobbes, Leviathan, 11.12. [2] Robert P. Kraynak, The Behemoth: Doctrinal Politics and the English Civil War, chap. 3 in History and Modernity in the Thought of Thomas Hobbes (Ithaca, N.Y.: Cornell University Press, 1990), 3268.

[3] Thomas Hobbes, De Cive, I.7. [4] Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 181. [5] Leviathan, 14.3; De Cive, I.7 [6] Noberto Bobbio, Thomas Hobbes and the Natural Law Tradition, trans. Daniela Gobetti (Chicago: University of Chicago Press, 1993), 16771. [7] Leo Strauss, The Political Philosophy of Hobbes: Its Basis and Genesis, trans., E. M. Sinclair (1936; repr., Chicago: University of Chicago Press, 1952), 11828. Also, C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (London: Oxford University Press, 1962), 6168. [8] George Mace, Hobbes: The Basis of the American Natural Rights Heritage, chap. 3 in Locke, Hobbes, and The Federalist Papers: An Essay on the Genesis of the American Political Heritage (Carbondale, Ill.: Southern Illinois University Press, 1979), 3345. Also, Frank M. Coleman, Hobbes and America: Exploring the Constitutional Foundations (Toronto: University of Toronto Press, 1977).

John Locke is one of the founders of liberal political philosophy, the philosophy of individual rights and limited government. This is the philosophy on which the American Constitution and all Western political systems today are based. In the Second Treatise of Government, Lockes most important political work, he uses natural law to ground his philosophy. But there are many different interpretations of the natural law, from the Ciceronian to the Thomistic to the Grotian. What is Lockes interpretation? What version of natural law supports liberal politics? Some argue that this is a misguided question. They say that Lockes political philosophy is not based on natural law at all, but instead on natural rights, like the philosophy of Thomas Hobbes. This is probably the greatest controversy in Locke interpretation today. Natural law theories hold that human beings are subject to a moral law. Morality is fundamentally about duty, the duty each individual has to abide by the natural law. Thomas Hobbes created a new approach when he based morality not on duty but on right, each individuals right to preserve himself, to pursue his own goodessentially, to do as he wishes. Is Locke a follower of Hobbes, basing his theory on right rather than natural law? What difference does it make? One characteristic of a rights theory is that it takes man to be by nature a solitary and independent creature, as in Hobbess state of nature. In Hobbess state of nature, men are free and independent, having a right to pursue their own self-interest, and no duties to one another. The moral logic is something like this: nature has made individuals independent; nature has left each individual to fend for himself; nature must therefore have granted each person a right to fend for himself. This right is the fundamental moral fact, rather than any duty individuals have to a law or to each other. The priority of individual right reflects our separateness, our lack of moral ties to one another. According to Hobbes, one consequence of this is that the state of nature is a war of all against all: human beings are naturally at war with one another. Individuals create societies and governments to escape this condition. Society is not natural to man, but is the product of a social contract, a contract to which each separate individual must consent. The sole purpose of the contract is to safeguard the rights of each citizen. This is the basic recipe for the political philosophy of liberalismLockes philosophy. Locke speaks of a state of nature where men are free, equal, and independent. He champions the social contract and government by consent. He goes even farther than Hobbes in arguing that government must respect the rights of individuals. It was Lockes formula for limited government, more than Hobbess, that inspired the American Founding Fathers. But what is the basis of Lockes theory? Is it natural law or Hobbesian natural right? The Founding Fathers, in the Declaration of Independence, speak of both natural rights and natural laws. Locke does likewise. Natural law and natural right may be combined, but if they are, one must take precedence over the other. Either the individuals right, or his duty to moral law, must come first. What is Lockes position? In Chapter Two of the Second Treatise of Government, he asserts that men in the state of nature are free and equal, and at liberty to do as they wishbut only within the bounds of the law of nature. This limitation separates Locke from Hobbes. Hobbes had argued that freedom and equality, and the priority of individual right, meant that individuals in

the state of nature could pursue their survival and interest without limitation. They had no duty to respect the rights of others. This is why the state of nature was a state of war. Lockes claim is that individuals have a duty to respect the rights of others, even in the state of nature. The source of this duty, he says, is natural law.[1] The difference with Hobbes is clearest in Lockes argument about property. Hobbes and Locke agree that individuals have a right to property in the state of nature, but Hobbes denies that individuals have any duty to respect the property of others. This makes property more or less useless in Hobbess state of nature. Locke says individuals have a duty to respect the property (and lives and liberties) of others even in the state of nature, a duty he traces to natural law.[2] Natural law and natural rights coexist, but natural law is primary, commanding respect for the rights of others. Here, then, is the issue in the natural lawnatural right dichotomy: if individual right is primary, can individuals have any duty to respect the rights of others? If the fundamental moral fact is the individuals right to look out for number one, where would a duty to respect others come from? Hobbes finds no such duty, for it would restrict the individuals liberty and his right.[3] Locke argues for a duty to respect others rights, but traces it to natural law, not right. Lockes view is the view most of us shareI have rights, but my right to swing my fist ends where your nose begins. We typically think of individual rights as being coupled with a responsibility to respect the rights of others. Lockes argument suggests that this responsibility depends upon duty and natural law, not individual right, as the basis of morality. Or does it? There is a potentially serious loophole in Lockes argument. In Chapter Two of the Second Treatise, he says that the individual only has a duty to respect others rights when his own preservation comes not in competition. If my life is threatened, I need not respect anyone elses rights, I may do whatever is necessary to preserve myself. How extensive is this loophole? If the state of nature is as violent and desperate as Hobbes said it was, with everyone under continual threat of death, Lockes duty to respect the rights of others would essentially vanish. Some have argued that this is Lockes true meaning. In the beginning of the Second Treatise, Locke seems to claim that the state of nature is a place of peace and harmony. Later, however, he makes it clear that the state of nature was actually very insecure, with peoples rights under continual threat. Conditions drive men to form a social contract for their protection.[4] If Lockes state of nature is as violent as Hobbess, it could mean that Lockes natural duty to respect others amounts to little or nothing, that the individuals right to fend for himself is primary after all, and that Locke is much closer to Hobbes than he seems. He might want us to think, as some Locke scholars have argued, that he is a traditional natural law thinker, while conveying a secret, esoteric teaching based squarely on Hobbess individual right instead. This is the deepest controversy in Locke interpretation today, a controversy that is sometimes acrimonious. Even for those who see Locke as a kind of Hobbesian, though, it is generally agreed that Locke believes in some degree of natural duty to respect the rights of others. In this view, Lockes argument is based on rights rather than law, but he understands the rights differently: perhaps rights imply reciprocity, or mutual respect among individuals, in a way that Hobbes failed to see. Similarly, for those who see Locke as a natural law thinker, there is

controversy over the source of that law. Locke says, in the First Treatise of Government and elsewhere, that God is the source of the natural law. But God is much less in evidence in the Second Treatise. What is Lockes view? Further, if Locke is serious about natural law, it is clear that his version of natural law is quite different from that of other natural law thinkers, such as Thomas Aquinas. Lockes natural law sanctions the basic right of individuals to pursue their own self-interestto accumulate wealth, for example. If Locke is a natural law thinker, his version of natural law is much more individualistic, much closer to Hobbes, than were previous versions. For contemporary Americans, one reason for studying Locke (together with Hobbes) is to understand the character of liberalism. A liberal system such as ours enshrines individual rights, but its health depends upon people exercising those rights responsibly. It depends on people taking seriously their duty to respect the rights of others. Many observers believe that, while Americans today are eager to claim their rights, too few are willing to shoulder the attendant responsibilities. Is a rights-based society doomed to degenerate into simple selfishness? Or is it possible to construct a rights philosophy with a robust element of responsibility built into it? Must such a philosophy place natural law above individual right? Must this law have a religious dimension? These are questions that should send us back to Hobbes, Locke, and the architects of the American Constitution.

Texts: Locke, Second Treatise of Government, at Online Library of Liberty (Liberty Fund): http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=763&lay out=html#chapter_65388. The portion entitled Of Civil Government: Book II.

Locke, First Treatise of Government, at the same web address. The portion entitled Of Government: Book I.

Secondary sources: Strauss, Leo, Natural Right and History, Ch 5 (University of Chicago Press, 1953). This is the seminal statement of the Hobbesian interpretation of Locke.

Zuckert, Michael P.. Natural Rights and the New Republicanism, Chs 7-9. (Princeton University Press, 1994). This is a more extensive statement of the quasi-Hobbesian interpretation.

Laslett, Peter, Introduction in the Cambridge University Press edition of Lockes Two Treatises of Government. This presents a more traditional interpretation of Locke as a natural law thinker.

Grant, Ruth W, John Lockes Liberalism (University of Chicago Press, 1987). Another interpretation of Locke as natural law thinker.

Forde, Steven, Natural Law, Theology, and Morality in Locke (American Journal of Political Science 45:2 [April, 2001], pp. 396-409). This article contains a more complete exploration of the argument between the Hobbesian and more traditional interpretations.

[1] These arguments are found in paragraphs 6 and 7, Chapter Two of the Second Treatise of Government. [2] See Second Treatise of Government, Ch. 5 [3] We have duties to others in Hobbess social contract, but those duties come from the contract, not from nature. [4] Second Treatise of Government Ch 7 (77). See also Ch. 9, 123.