Rawls J. Lectures on the History of Political Philosophy

Подождите немного. Документ загружается.

locke

EXAM COPY

locke i

His Doctrine of Natural Law

§1. Introductory Remarks

1. The early 20th-century philosopher R. G. Collingwood said: “The

history of political theory is not the history of different answers to one and

the same question, but the history of a problem more or less constantly

changing, whose solution was changing with it.”

This interesting remark

seems to exaggerate a bit, since there are certain basic questions that we

keep asking, such as:

What is the nature of a legitimate political regime?

What are the grounds and limits of political obligation?

What is the basis of rights, if any? and the like.

But these questions, when they come up in different historical contexts,

can be taken in different ways and have been seen by different writers from

different points of view, given their political and social worlds and their cir-

cumstances and problems as they saw them. To understand their works,

then, we must identify those points of view and how they shape the way

the writer’s questions are interpreted and discussed.

Construed this way, Collingwood’s remark helps us to look for the an-

swers different writers give to their (not our) questions. To this end we

must try to think ourselves into each writer’s scheme of thought, so far as

we can, and try to understand their problem and their solution from their

point of view and not from ours. When we do this, it often happens that

their answers to their questions strike us as much better than we might oth-

erwise have supposed. Indeed, I think that, given their way of thought and

the problems of their day, the writers we discuss—Hobbes, Locke, Rous-

[ 103 ]

1. R. G. Collingwood, An Autobiography (Oxford: Clarendon Press, 1939), p. 62.

EXAM COPY

seau, Hume, Mill, and Marx—give very good, though not perhaps perfect,

answers to the questions that concern them. This is why we still read their

texts and ﬁnd what they say instructive.

2. The criticisms I shall make do not consist in pointing out fallacies and

inconsistencies in, say, Locke’s or Mill’s thought, but rather in examining a

few basic respects in which we, from our own point of view and concerned

with our own questions or problems, do not ﬁnd their answers or solutions

altogether acceptable, as instructive as they are. Therefore, when we discuss

these writers our ﬁrst effort is to understand what they say, and to interpret

them in the best way their point of view seems to allow. Only then shall we

regard ourselves as ready to judge their solution from our point of view. I

believe that unless we follow these guidelines in reading the works of these

six philosophers, we fail to treat them as conscientious and intelligent writ-

ers who are in all essential respects at least our equals.

In taking up Locke

I shall consider but one main difﬁculty which arises

from the fact that, as described in the Second Treatise, Locke’s social con-

tract doctrine may justify or allow for inequalities in basic political rights

and liberties. For example, the right to vote is restricted by a property quali-

ﬁcation. The constitution he envisages is that of a class state: that is, politi-

[ 104 ]

locke

2. Useful secondary sources on Locke are: Richard Ashcraft, Revolutionary Politics and

Locke’s “Two Treatises of Government” (Princeton: Princeton University Press, 1986), and

Locke’s Two Treatises of Government (London: Unwin, 1987); Michael Ayres, Locke: Epistemol-

ogy-Ontology, 2 vols. (London: Routledge, 1991); Joshua Cohen, “Structure, Choice and Le-

gitimacy: Locke’s Theory of the State,” PAPA, Fall 1986; John Dunn, The Political Thought

of John Locke (Cambridge: Cambridge University Press, 1969); Julian Franklin, John Locke

and the Theory of Sovereignty (Cambridge: Cambridge University Press, 1978); Ruth Grant,

John Locke’s Liberalism (Chicago: University of Chicago Press, 1987); Peter Laslett, Introduc-

tion to Two Treatises of Government (Cambridge: Cambridge University Press, Student Edi-

tion, 1988); Wolfgang von Leyden, John Locke, Essays on the Law of Nature (Oxford: Oxford

University Press, 1954); C. B. MacPherson, Political Theory of Possessive Individualism (Ox-

ford: Oxford University Press, 1962); J. B. Schneewind, Moral Philosophy from Montaigne to

Kant (Cambridge: Cambridge University Press, 1990), 2 vols., in Vol. 1, pp. 183–198; Peter

Schouls, The Imposition of Method: A Study of Descartes and Locke (New York: Oxford Univer-

sity Press, 1980); John Simmons, The Lockean Theory of Rights (Princeton: Princeton Univer-

sity Press, 1992), and On the Edge of Anarchy (Princeton: Princeton University Press, 1993);

Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge

University Press, 1979); James Tully, A Discourse on Property: John Locke and His Adversaries

(Cambridge: Cambridge University Press, 1980); Jeremy Waldron, The Right to Private Prop-

erty (Oxford: Clarendon Press, 1988), esp. Ch. 8, and “Locke, Toleration, and the Rational-

ity of Persecution,” in Liberal Rights: Collected Papers (Cambridge: Cambridge University

Press, 1993).

EXAM COPY

cal rule is exercised only by those who own a certain amount of property

(the equivalent of a 40s. freehold, which in Locke’s day was roughly 4.5

acres of farmable land). How a class state is permissible in his doctrine we

shall examine in the third lecture on Locke.

But before we can raise this question we must understand his doctrine

in its best light. Remember here J. S. Mill’s aphorism: “A doctrine is not

judged at all until it is judged in its best light.”

3. To this end, we must ask what problem Locke, and each of the other

writers, is especially concerned with and why. Hobbes, for example, is con-

cerned with the problem of civil war between contentious religious sects,

made worse by conﬂict between political and class interests. In his con-

tract doctrine Hobbes argues that everyone has sufﬁcient rational grounds,

rooted in their most basic interests, for creating, by agreement among

themselves, a state, or Leviathan, with an effective sovereign with absolute

powers, and for supporting such a sovereign whenever one exists. These ba-

sic interests include not only our interest in preserving ourselves and ob-

taining the means of a commodious life, as Hobbes says, but also, and this

is important for Hobbes, who was writing in a religious age, our transcen-

dent religious interest in our salvation. (A transcendent religious interest is

one that may override all secular interests.) Taking these interests as basic,

Hobbes thinks it rational for everyone to accept the authority of an existing

and effective absolute sovereign. He views such a sovereign as the only sure

protection against destructive civil strife and the collapse into the state of

nature, the worst condition of all.

Locke’s problem is altogether different, and so, as we might expect, are

his assumptions: Locke’s aim is to provide a justiﬁcation for resistance to

the Crown within the context of a mixed constitution. This is a constitution

in which the Crown has a share in legislative authority, and therefore, the

legislature (that is, Parliament) cannot alone exercise full sovereignty. Locke

is preoccupied with this problem because he is involved in the Exclusion

Crisis of 1679–81, so named because the ﬁrst Whigs, led by the Earl of

Shaftesbury, tried to exclude Charles II’s younger brother James, then Duke

of York, from succeeding to the throne.

James was a Catholic, and the Whigs feared that he was bent on estab-

lishing in England a royal absolutism and restoring the Catholic faith, using

[ 105 ]

His Doctrine of Natural Law

3. See Review of Sedgwick’s Discourse, in Mill’s Collected Works, Vol. X, p. 52.

EXAM COPY

force, and with French help. The Whigs were defeated in this crisis in part

because they were divided as to whom to name King in James’s place (the

Duke of Monmouth, Charles’s illegitimate son, or William of Orange), and

in part because Charles was able to rule without Parliament with the aid of

large secret subsidies paid him by Louis XIV of France.

4. Locke, who was trained as a physician, ﬁrst met the Earl of

Shaftesbury when he was called to the Earl’s bedside in that capacity. They

became very close, and for a number of years beginning in 1666, Locke

was a member of his household. He had an apartment in Exeter House

(Shaftesbury’s London residence) on the Strand in London, and there he

wrote in 1671 the ﬁrst draft of the Essay on Human Understanding. The Two

Treatises were written during the Exclusion Crisis of 1679–81 (and not later

in 1689 as was once believed) as a political tract defending the Whig cause

against Charles II. This date explains their tone and preoccupations.

Sir Robert Filmer,

a committed royal absolutist with personal connec-

tions to the church and the court, who had died in 1653, had written in

defense of the absolute monarchy at the time of the English Civil War.

Most of his works were published between 1647 and 1653, but they were

republished in 1679–1680, at which time his most important manuscript,

Patriarcha, was published for the ﬁrst time. His writings were very inﬂuen-

tial between 1679 and 1681, when Locke was writing his Two Treatises of

Government. Locke’s avowed philosophical aim (see the title page of the

First Treatise) is to attack Robert Filmer’s defense of the royalist position

and his argument that the King has absolute power that comes from God

alone, and to establish that royal absolutism is incompatible with legitimate

[ 106 ]

locke

4. Laslett thinks that most of the Second Treatise was written during the winter of

1679–1680, including Chapters 2–7, 10–14, and 19. Early in 1680, after Sir Robert Filmer’s

Patriarcha appeared (see note 5 below), the First Treatise was written, as a response to that

book. In the summer of 1681 Locke added to the Second Treatise a part of Chapter 8 and

Chapters 16, 17, and 18. Finally, in 1689, before publication, he added Chapters 1, 9, and 15

to the Second Treatise. See Laslett’s Introduction to Locke’s Two Treatises, p. 65.

5. For Robert Filmer see the following: Patriarcha and Other Writings, ed. Johann

Somerville (Cambridge: Cambridge University Press, 1991), which now replaces the earlier

edition of Patriarcha by Peter Laslett (Oxford: Blackwell, 1949); besides the many refer-

ences in Laslett’s Introduction to the Two Treatises, see Gordon Schochet, Patriarchalism

and Political Thought (Oxford: Oxford University Press, 1975); John Dunn in his Political

Thought of John Locke, Ch. 6, considers the place of Filmer in Locke’s thought; see also Na-

than Tarcov, Locke’s Education for Liberty (Chicago: University of Chicago Press, 1984), Ch.

1, which has much to say about Filmer and his relation to Hobbes and Locke.

EXAM COPY

government. Very brieﬂy, on Locke’s view, legitimate government can arise

only from the consent of the persons subject to it. He views these persons

as by nature free and equal, as well as reasonable and rational. Hence they

cannot agree to any change unless it improves their condition. Locke be-

lieves that absolute government can never be legitimate because he, as op-

posed to Hobbes, believes that (royal) absolutism is even worse than the

state of nature. See ¶¶90–94, esp. ¶91, where Locke distinguishes between

the ordinary state of nature, and the unrestrained state of nature to which

absolutism leads.

5. To sum up: in Hobbes, the idea of the social contract is used as a

point of view from which rational persons, looking to their most basic in-

terests (including here their transcendent religious interest in salvation) can

see that they have sufﬁcient reason for supporting an effective sovereign

(and for Hobbes this means an absolute sovereign, because only such can be

effective) whenever such a sovereign exists.

In Locke the idea of the social contract is used to maintain that legiti-

mate government can be founded only on the consent of free and equal,

and reasonable and rational persons, starting from the state of nature re-

garded as a state of equal political jurisdiction, all being, as it were, equally

sovereign over themselves. In this way Locke seeks to limit the form of a le-

gitimate regime to exclude royal absolutism and so to justify resistance to

the Crown under a mixed constitution.

This contrast between Hobbes and Locke illustrates an important point:

that what may seem the same idea (the idea of the social contract) can have

a very different meaning and use, given its role within a political conception

as a whole.

[ 107 ]

His Doctrine of Natural Law

6. All references within the text, unless otherwise stated, are to numbered paragraphs

of the Second Treatise. While for the most part I shall refer only to the Second Treatise, the

First is not without its interest and contains a number of passages very important for

Locke’s view. To wit: property does not imply authority, I: ¶¶41–43; property related to lib-

erty of use, ¶¶39, 92, 97; on fatherhood and authority, with the mother having an equal

share, ¶¶52–55; Locke says that for Filmer, men are not born naturally free, ¶6; and cites

him as saying that men are born subjects, ¶50; Locke argues against primogeniture, ¶¶90–

97; he gives a summary of Filmer’s system, ¶5, and says that if this system fails, govern-

ment must be left again to the old way of being made by contrivance and the consent of

men making use of their reason to unite into society, ¶6; and ﬁnally, that public good is the

good of every particular member of society, as far as by common rules it can be provided

for, ¶92.

EXAM COPY

6. In reading Locke we should be aware that he was engaged in what in-

creasingly became politically dangerous business. As Laslett tells us, princi-

pally on pages 31 and 32 of his Introduction to the Two Treatises, when the

third Exclusion Parliament met at Oxford in March of 1681, armed resis-

tance to the Crown seems to have been decided on if the Exclusion Bill

failed again (as it did). Locke took an active part; he even went from house

to house seeking accommodations for Shaftesbury’s entourage, including a

man named Rumsey, chief of Shaftesbury’s desperadoes.

Subsequently, when Shaftesbury, after a period of imprisonment, en-

gaged in what bordered on treasonous consultations, Locke went along

with him. He was with Shaftesbury the whole summer of 1682, and he

traveled with him to Cassiobury (the seat of the Earl of Essex) where they

met with Whig leaders at the height of the so-called Insurrection Plot. And

he went there again in April of 1683, after Shaftesbury had died in exile in

Holland, when preparations for the Assassination, or Rye House Plot, are

alleged to have been under way. After the Rye House Plot was discovered

Locke became a fugitive, and lived in exile until 1689. The Two Treatises, a

work against the government, had been written earlier, probably while he

was still with Shaftesbury, well before the Glorious Whig Revolution of

1688.

I recount this by now well-known story to give you a sense of the

man whose work we are about to discuss. It is quite remarkable that any-

one could write such a reasonable work, one of such imperturbable good

sense, while actively engaged, at great personal risk, in what may have been

treason.

7. I call your attention to what Locke says in the ﬁrst sentence of the

Preface to the Two Treatises: namely, that there had been a middle part of

the work, longer than what he publishes here as the Two Treatises. He says

that it is not worthwhile to tell us what happened to that middle part; but

Locke was a cautious man and perhaps had reason to destroy it. Perhaps it

contained constitutional doctrines that might have cost him his head. A list

of books in Locke’s library suggests that to mislead the King’s agents he

may have called the whole work De Morbo Gallico (the French disease), in

those days a name for syphilis. Locke and Shaftesbury did think of royal ab-

[ 108 ]

locke

7. See note 4 above. For an interesting discussion concerning when and why Locke

wrote the Two Treatises, see Laslett’s Introduction, pp. 45–66.

EXAM COPY

solutism as a French disease, and certainly the French had a bad case of it

under Louis XIV.

§2. The Meaning of Natural Law

1. As background to what Locke calls “The Fundamental Law of Na-

ture” (FLN) I should ﬁrst make some remarks about the meaning of natu-

ral law. In the natural law tradition, natural law is that part of the law of

God which can be known by us by the use of our natural powers of rea-

son. These powers discern both the order of nature open to our view and

the intentions of God which are disclosed through that order. And on this

ground, it is said that natural law is promulgated, or made known to us, by

God through our natural reason (¶57).

The following points explain why

the terms “natural” and “law” in the term “natural law” are appropriate.

(a) First as to “law”: a law is a rule addressed to rational beings by some-

one with legitimate authority to regulate their conduct. (Here one might

add to the deﬁnition of law the phrase: “for their common good,” as this

would ﬁt Locke’s view, given his deﬁnition of political power in ¶3 as the

right to make and enforce laws—“all this only for the public good.”) Natu-

ral law is literally law, that is, it is promulgated to us by God who has legiti-

mate and supreme legislative authority over all mankind. God is, as it were,

the sovereign of the world with supreme authority over all its creatures;

thus natural law is universal and associates mankind into one community

with a law to govern it.

To speak of natural law as promulgated is, of

course, metaphorical, since natural law is not literally promulgated like the

[ 109 ]

His Doctrine of Natural Law

8. See Laslett’s Introduction, pp. 62–65, 76f.

9. See also ¶124 where Locke says that the law of nature is plain and intelligible to all

rational creatures; and ¶136 where he says that the law of nature is unwritten and found

only in the minds of men.

10. Locke says: “What duty is, cannot be understood without a law; nor a law be

known, or supposed without a law-maker, or without rewards and punishment.” Essay

Concerning Human Understanding, Vol. I, Book I, Ch. 3, §12. See also Vol. I, Book II, Ch. 28,

§6, where Locke says: “It would be in vain for one intelligent being to set a rule to the ac-

tions of another if he had it not in his power to reward the compliance with and punish de-

viation from his rule by some good and evil that is not the natural product and conse-

quence of the action itself.” In that case it “would operate of itself without a law. This . . .

is the true nature of all law, properly so called.”

EXAM COPY

law of worldly princes. But since natural law is literally law, it must be in

some manner promulgated—that is, made public, or known—to those to

whom it applies. Otherwise it is not law. This explains the propriety of the

term “law” in the term “natural law.”

(b) Now consider the propriety of the term “natural.” One basis for this

term is that, as stated above, natural law is made known to us, or at any

rate can be, through the use of our natural faculties of reason to draw con-

clusions from the evident general facts and design of nature. Included

among these general facts are such things as the natural needs, propensities

and inclinations of human beings, the faculties and powers by which we dif-

fer from and are related to the animals and other parts of nature. Roughly,

the idea is that, given the faith that God exists (or alternatively, that God’s

existence itself can be shown by reason), we are able to discern from the or-

der of nature what God’s intentions towards us must be, and that among

these intentions is that we are to act from certain principles in our conduct

toward one another. In view of God’s authority, these principles discerned

by natural reason as God’s intentions are laws for us. Hence the term “natu-

ral” in the name “natural law.”

From the preceding we see that natural law differs from divine law. For

divine law is that part of the law of God which can only be known by reve-

lation. To ascertain the requirements of divine law is beyond the powers of

our natural reason. Moreover, natural law is also distinct from all human

enactments and so from the actual law of states, or what Locke sometimes

calls “municipal, or positive, law.” The laws of states are to conform to the

principles of natural law (when these are applicable). As Locke says (¶135),

the obligations of the law of nature hold in society as well as in the state of

nature, and the law of nature “stands as an Eternal Rule to all Men, Legisla-

tors as well as others.” Thus the principles of natural law are fundamental

principles of right and justice applicable to the laws of states and to political

and social institutions. Here is another reason for the term “law” in the

name “natural law”: natural law applies to law and to legal institutions.

2. We should note ﬁnally that what Locke calls the Fundamental Law

of Nature is not to be taken as the most fundamental principle of his philo-

sophical theology as a whole; and the same is usually true for other views.

(a) The point is this: there must be some further and even more funda-

mental principle that accounts for God’s legitimate authority. In the ab-

sence of this authority, God’s enactments, however promulgated to us, will

[ 110 ]

locke

EXAM COPY