Rawls J. Lectures on the History of Political Philosophy

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not be binding as laws for us. Different writers explain the grounds of

God’s authority in different ways. In ¶6 (which I will be quoting later, in §3),

Locke explains God’s authority over us by the right of creation. Since God

has created us from nothing and must continually sustain our being if we

are to go on existing, supreme authority over us resides in God.

Hobbes,

on the other hand, seems content to trace God’s authority to God’s omnip-

otence: dominion belongs to God “. . . not as Creator, and Gracious; but as

Omnipotent.”

(b) To conclude: even when the system of law is that of natural law, we

must still distinguish between:

(i) Who has supreme authority in that system, and

(ii) Why that person has that authority, and

(iii) The principles that specify the content of the norms of the system.

Thus the account of why God has legitimate authority over mankind is dis-

tinct from the account of the content of natural law itself and of the vari-

ous norms and rules that are justiﬁed by reference to it.

3. When I refer to natural law I understand it as just explained, namely,

as the law of God as known by our natural reason. This is the traditional

sense in which Locke uses it, and it is also central for him; so when he

speaks of natural law or natural right, there is a reference, direct or indirect,

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11. See Essays on the Law of Nature, pp. 151–157.

12. Leviathan, p. 187.

13. Locke says in the Essays on the Law of Nature that it is “the decree of the divine will

discernible by the light of nature and indicating what is and what is not in conformity with

rational nature, and for this very reason commanding or prohibiting” (p. 111). In the Essay

Concerning Human Understanding (1690) he refers to the kinds of law we use to judge moral

rectitude as the Divine Law: “. . . that law which God has set to the actions of men,

whether promulgated to them by the light of nature, or the voice of revelation” (Vol. I,

Book II, Ch. 28, §8). There is an incoherence in Locke’s account of the basis of right and

justice: namely, that he wants to account for them by maintaining that the relevant princi-

ples thereof are God’s commands; on the other hand, that we are obligated to conform to

God’s commands presupposes that God has rightful authority over us, a right of creation,

and that God is wise and beneﬁcent. The right of creation of a wise and beneﬁcent God,

however, cannot itself be commanded by God, as the validity of any such command

would presuppose that right. Locke never satisfactorily resolved this question and was ef-

fectively criticized on this point by Samuel Clarke. A clear discussion of these matters is

found in Michael Ayres, Locke: Epistemology-Ontology (London: Routledge, 1991), Vol. 2,

Chs. 15–16. Locke’s doctrine is an example of the view Kant argues against in the

Grundlegung in giving the third formula of the categorical imperative: Ak: IV: 431ff.

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to the fundamental law of nature understood as the law of God as known

by reason.

There is, however, at least one possible exception. It is not clear

whether or how the connection with the law of nature is to be established

with regard to the principle of ﬁdelity (that promises and compacts are to

be kept): this Locke seems to take as part of the law of nature (¶14), but the

grounds of this principle he does not consider. However, in the cases we

are concerned with, for example, the natural right of persons to the equal

freedom to which we are all born (in view of our powers of reason) and

the natural right of property, the connection with the fundamental law of

nature is clear enough. I come back to this later when we examine how the

natural rights just mentioned are derived from the fundamental law of

nature.

Observe ﬁnally that Locke’s conception of natural law provides us with

an example of an independent order of moral and political values by refer-

ence to which our political judgments of justice and the common good are

to be assessed. Correct or sound judgments are true of, or accurate with re-

spect to, this order, the content of which is in large part speciﬁed by the

fundamental law of nature as God’s law. Thus Locke’s view contains a con-

ception of justiﬁcation distinct from the conception of public justiﬁcation

in justice as fairness as a form of political liberalism.

However, justice as

fairness neither asserts nor denies the idea of such an independent order, or

justiﬁcation as showing moral and political judgments to be true by refer-

ence to this order.

§3. The Fundamental Law of Nature

1. I shall now review the statement and description of the law of na-

ture, its role, its content and several clauses, as well as some of the rights

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14. John Rawls: Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard

University Press, 2001), §9.2: “An essential feature of a well-ordered society is that its public

conception of political justice establishes a shared basis for citizens to justify to one an-

other their political judgments: each cooperates, politically and socially, with the rest on

terms all can endorse as just. This is the meaning of public justiﬁcation.”

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that Locke thinks derive from it. First, let’s note the very important state-

ment of this law which reads as follows:

The State of Nature has a Law of Nature to govern it, which obliges ev-

ery one: And Reason, which is that Law, teaches all Mankind, who will

but consult it, that being all equal and independent, no one ought to

harm another in his Life, Health, Liberty, or Possessions. For Men be-

ing all the Workmanship of one Omnipotent, and inﬁnitely wise

Maker; All the Servants of one Sovereign Master, sent into the World

by his order and about his business, they are his Property, whose

Workmanship they are, made to last during his, not one another’s plea-

sure. And being furnished with like Faculties, sharing all in one Com-

munity of Nature, there cannot be supposed any such Subordination

among us, that may Authorize us to destroy one another, as if we

were made for one another’s uses, as the inferior ranks of Creatures

are for ours. Every one as he is bound to preserve himself, and not to quit

his Station willfully; so by the like reason when his own Preservation

comes not in competition, ought he, as much as he can, to preserve the

rest of Mankind, and may not unless it be to do Justice on an Offender,

take away, or impair the life, or what tends to the Preservation of the

Life, the Liberty, Health, Limb, or Goods of another. (¶6)

The most basic law of nature, or what Locke calls “the Fundamental Law

of Nature,” is that “Man [is] to be preserved, as much as possible” (¶16); or, as

he puts it in ¶134, it is “the preservation of the Society, and (as far as will con-

sist with the public good) of every person in it.” Much the same is repeated

in ¶¶135, 159, and 183.

2. The statement that “The State of Nature has a Law of Nature to gov-

ern it,” which opens the deﬁnition in ¶6, is supplemented by many passages

throughout the Second Treatise that describe that natural law: Thus:

(a) In agreement with what I have said earlier, the Law of Nature is de-

scribed as a “Declaration” of “the Will of God” (¶135).

(b) Concerning the fundamental law of nature, Locke says “Reason,

which is that Law, teaches all Mankind” (¶6). Locke describes the funda-

mental law of nature as not only known by reason, but as the law “of reason

and common Equity”(¶8); as “the right Rule of Reason” (¶10); as “the

Common Law of Reason” (¶16), and as “the Law of Reason” (¶57).

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and so nowhere to be found but in the minds of Men.” In ¶12, it is “as intel-

ligible and plain to a rational Creature, and a Studier of that Law, as the

positive Laws of Commonwealths, nay possibly plainer; As much as Reason

is easier to be understood, than the...intricate Contrivances of Men.” (See

also ¶124.) All this ﬁts with the idea that the Law of Nature is God’s will,

“being promulgated or made known by Reason only” (¶57).

3. Locke also writes on the role of the fundamental law of nature:

(a) First, from ¶6 we see that the fundamental law of nature associates

all mankind into one great natural community with the law of nature to

govern it. In ¶172 Locke speaks of a man who puts himself into a state of

war with another as having “quitted Reason, which God hath given to be

the Rule betwixt Man and Man, and the common bond whereby human

kind is united into one fellowship and society.” In ¶128 Locke says that the

Law of Nature, common to us all, causes each of us and the rest of man-

kind to be “one Community, [making] up one Society distinct from all other

Creatures.”

The law of nature would sufﬁce to govern us were it not for the corrup-

tion and viciousness of degenerate people. There would be no need for us

to separate into civil societies each with its distinct political authority, and

so to split up “this great and natural Community” (¶128). Thus, the funda-

mental law of nature is a law for the community of humankind in the state

of nature. This state, while a state of liberty, is not a state of license: it is

bound by a law of nature and reason (¶6).

(b) The fundamental law of nature is also the regulative principle for

political and social institutions of the various civil societies into which the

community of humankind divides. Municipal (i.e., civil) law is right and

just only when it is founded on, or accords with it. The fundamental law of

nature does not cease to apply in society, but stands as an eternal rule to all

men, legislators as well as others. No human sanction is good, or valid,

when contrary to it.

and rational persons for their good. See the important statement in ¶57,

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15. “The Obligations of the Law of Nature, cease not in Society ...[but]...[stand] as

an Eternal Rule to all Men, Legislators as well as others. The Rules that they make ...must

...beconformable to the Law of Nature...andthefundamental Law of Nature being the

preservation of Mankind, no Human Sanction can be good, or valid against it” (¶135; see

also ¶171).

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where Locke says: “For Law, in its true Notion, is not so much the Limita-

tion as the direction of a free and intelligent Agent to his proper Interest, and

prescribes no farther than is for the general Good of those under that Law.

Could they be happier without it, the Law, as a useless thing would of itself

vanish....the end of Law is not to abolish or restrain, but to preserve and en-

large Freedom. ...where there is no Law, there is no Freedom. For Liberty is to be

free from restraint and violence from others which cannot be, where there

is no Law.”

For Locke, then, the ideas of reason and law, of freedom and the gen-

eral good, are closely connected. The fundamental law of nature is known

by reason; it prescribes only for our good; it seeks to enlarge and to pre-

serve our freedom, that is, our security from the restraint and violence of

others. Liberty abides by law and is distinct from license, which abides by

no law. Here law is the law of reason given by the law of nature.

§4. The State of Nature as a State of Equality

1. From its role as just described we see that the fundamental law of na-

ture is the basic law of both the state of nature and political society (apply-

ing to its political and social institutions). The state of nature is, for Locke,

a state of perfect freedom and equality (¶4):

(i) It is a state of freedom because all are at liberty to order their actions

and to dispose of their possessions and persons as they see ﬁt, within the

limits set by the law of nature. It is not necessary that they ask the permis-

sion of anyone else, nor are they dependent on another’s will.

(ii) The state of nature is a state of equality, that is, a state of equal

power and jurisdiction among persons, all being, as it were, equally sover-

eign over themselves: “all being Kings,” as Locke says in ¶123. Clearly equal

power means equal liberty and political authority over oneself. Power is not

to be understood as strength, or control over resources, or much less as

force, but as right and jurisdiction.

In ¶54 Locke makes the important point that this state of equal free-

dom is compatible with various kinds of inequalities, for example, inequali-

ties arising from differences of age, merit, or virtue; and, as it turns out, dif-

ferences in inherited or acquired (real) property. As we have noted, the

equality Locke speaks of is a state of equal right to our natural freedom, a

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state of equal jurisdiction over ourselves under the law of nature. This free-

dom we are born to in virtue of our capacity for reason, and it is rightfully

ours when we attain the age of reason (¶57).

2. By starting with the state of nature as a state of equal freedom,

Locke is ﬂatly rejecting Robert Filmer’s starting point, which was that we

are born in a state of natural subordination.

Does Locke present an argu-

ment for his starting point? Or is he rather, as I am inclined to think, elabo-

rating a certain conception of human society under God? Locke’s explana-

tion of his view (¶4) is that God has not by a “manifest Declaration”

designated any one person as having an undoubted right of (political) do-

minion and sovereignty over the rest. God could do this but has not. Given

the historical fact that God has not, nothing is more evident than that per-

sons of the same natural kind and possessing all the same (relevant) advan-

tages of nature are born to a state of equal freedom and political jurisdic-

tion over themselves.

I think Locke’s view here is this: No one could have political authority

over others unless God had so designated by a manifest declaration, or un-

less there were relevant difference(s) between that person and the rest. But

given that God has not so declared, and given that we are of the same natu-

ral kind and possess all the same (relevant) advantages of nature, we are

born to a state of equality: that is, to a state of equal freedom and political

jurisdiction over ourselves. Certainly inequalities of age, merit, and virtue,

and of property, exist (¶54). But they are not, for Locke, relevant differences

for establishing political authority, which is (to abbreviate) “a Right of mak-

ing Laws with Penalties of Death...andofemploying the force of the

Community, in the Execution of such Laws . . ., and all this only for the

Public Good” (¶3).

Perhaps it is not surprising, then, that for Locke political authority can

arise only by the consent of those with equal jurisdiction over themselves.

He simply elaborates a different conception of political society than Filmer.

Ask yourself: Is this a fault in Locke, and if so, why?

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16. All are born into natural political subordination, except for those few who are des-

ignated by God to be dominant, and to be absolute rulers (through tracing their lines by

the rule of primogeniture back to Noah, and thence to Adam). See Filmer, Patriarcha.

Locke’s First Treatise is devoted to refuting Filmer’s argument that God gave ultimate

power to Adam, and that all legitimate sovereigns inherit that power directly from Adam.

Locke reiterates his major points in ¶1 of the Second Treatise.

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§5. The Content of the Fundamental Law of Nature

1. This brings us ﬁnally to the content of the fundamental law of na-

ture, namely, what it prescribes, including the several (natural) rights Locke

takes it to imply. In talking about equality above, we have already said

something about those rights. The term “Fundamental Law of Nature” is

used in: ¶¶16, 134, 135, 159, 183; and there are also statements about the

“Law of Nature” in: ¶¶4, 6, 7, 8, 16, 57, 134, 135, 159, 171, 172, and 181–183.

Two important clauses of the Fundamental Law of Nature are con-

tained in the statement I quoted earlier from ¶6. These read as follows:

(a) The ﬁrst clause: “being all equal and independent, no one ought to

harm another in his Life, Health, Liberty, or Possessions.”

(b) The second clause: “Every one as he is bound to preserve himself, and

not to quit his Station willfully; so by like reason when his own Preserva-

tion comes not in competition, ought he, as much as he can, to preserve the

rest of Mankind, and may not unless it be to do Justice on an Offender, take

away, or impair the life, or what tends to the Preservation of the Life, the

Liberty, Health, Limb, or Goods of another.”

Note the force of “by like reason” in the second clause. I am bound to

preserve myself because I am God’s property; but others also are God’s

property, and so for the same reason I am bound to preserve them also, at

least when their preservation is not in competition with mine. In ¶134

Locke says: “the ﬁrst and fundamental natural Law, which is to govern even

the Legislative itself, is the preservation of Society and (as far as will consist

with the public good) of every person in it.”

“Man being to be preserved, as much as possible, when all cannot be pre-

served, the safety of the Innocent is to be preferred.”

2. One application of this last clause is to self-defense: if I am wrongly

attacked by another intending to take my life, then since I am innocent

(let’s assume), I have a right of self-defense.

Another application of the third, and also of the second clause is to pro-

tect the families (the wives and children) of those violent men who begin

an unjust war, seeking conquest. Since their families are innocent—not in-

volved in their guilt and destruction—enough property and goods must be

left to them by the (just) victor so that they do not perish. (See ¶¶178–183.)

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Locke says, in ¶183: “. . . the Fundamental Law of Nature being, that all, as

much as may be, should be preserved, it follows, that if there be not

enough fully to satisfy both, viz. for the Conqueror’s Losses, and Children’s

Maintenance, he that hath, and to spare, must remit something of his full

Satisfaction, and give way to the pressing and preferable Title of those, who

are in danger to perish without it.”

Locke also states that even the guilty are sometimes to be spared: “for

the end of Government being the preservation of all, as much as may be, even

the guilty are to be spared, where it can prove no prejudice to the innocent”

(¶159). In this paragraph, Locke is stressing that all members of society are

to be preserved and that the sovereign (the Crown), in those cases the law

cannot foresee, may exercise its discretion (prerogative) in preserving “as

much as may be,” to use Locke’s phrase.

§6. The Fundamental Law of Nature as the Basis of Natural Rights

1. The natural rights we shall review do not to derive from the funda-

mental law of nature alone (with the content just discussed), but from that

law as supplemented by two premises:

(i) The fact of God’s silence: that God has not designated anyone to ex-

ercise political authority over the rest of humankind; and

(ii) The fact of equality: that we are “Creatures of the same species and

rank promiscuously born to all the same advantages of Nature [with re-

spect to establishing political authority] and the use of the same faculties

[powers of natural reason and will, and so on]” (¶4).

2. As Locke ﬁrst discusses these rights in ¶¶7–11, they are:

(a) The executive right we each have to punish transgressors of the fun-

damental law of nature; for that law would be in vain if no one had the

power to execute (enforce) it and thereby preserve the innocent and re-

strain offenders. Since the state of nature is a state of equality—equal (po-

litical) jurisdiction—all have this executive right equally: this right deriving

from our right to preserve mankind.

(b) The right to seek reparation, which right derives from our right of

self-preservation.

In the social compact we give up our personal right to preserve our-

selves and the rest of mankind to be regulated by the laws of society, so far

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as the preservation of ourselves and society shall require. We wholly give up

the right of punishing, and engage ourselves to assist the executive power

of society as its laws may require (¶130; see also ¶¶128–130).

3. It is important to recognize that for Locke nearly all natural rights

have a derivation. Aside from rights associated with the principle of ﬁdelity,

I believe he views them as following from the fundamental law of nature,

together with the two premises (the two facts) noted above: the fact of

God’s silence, and the fact of equality, as well, of course, as from the fact of

God’s legitimate authority over us. An example will convey what is meant:

Locke wishes to argue, against Filmer, that in the state of nature man

has a natural right of private property (to be discussed in the third lecture

on Locke). This right does not depend on the express consent of the rest of

humankind. In the state of nature man is at liberty to use what “he hath

mixed his Labor with,” provided ﬁrst, that there is enough and as good left

for others (¶27) and second, that we take no more than we can use, so that

nothing we take spoils (¶31).

Now this rule (that we are at liberty to use what we have mixed our la-

bor with, subject to these two provisos) is a law of nature, let’s say. It ex-

presses a natural right (a liberty of use) in the sense that it is a rule that is

reasonable for the ﬁrst stage of the state of nature; and under those circum-

stances it gives us a liberty of use. Note though that this right follows from

the fundamental law of nature.

Locke supposes that (i) given that fundamental law—that all mankind is

to be preserved, etc.—and (ii) given that the bounty of nature is for our

use, and (iii) given that the (express) consent of the rest of mankind is im-

possible to obtain, it must be God’s intention that we may appropriate from

nature’s bounty and make use of it subject to the two provisos. Otherwise,

all mankind, and, so far as possible, every member of it, could not be pre-

served.

Thus, the natural right of property (the liberty to use) in the state of

nature is the conclusion of an argument from the fundamental law of na-

ture (supplemented by other premises). I think the same is true for other

cases of natural rights, modulo the rights based on the principle of ﬁdelity.

4. The signiﬁcance of the preceding remarks is that Locke does not

found his social contract doctrine on a list of natural rights and natural laws

without any explanation of where they come from. While the idea of such

a list is not as such implausible, it is not Locke’s. He does say that even

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while in a state of nature men must be bound by their promises for

“...Truthandkeeping Faith belongs to Men, as Men, and not as Members

of society” (¶14). Telling the truth and keeping faith are presumably part of

the fundamental law of nature, a further aspect included in it, as is the pri-

ority for the protection of the innocent. Perhaps it is part of the law of na-

ture more generally conceived. God’s right of creation is also treated as evi-

dent, but that is not, certainly, a natural right.

Thus, Locke starts from the principle of the fundamental law of nature

and these two facts: the fact of equality, and the historical fact (as he argues

in the First Treatise) that God has not designated anyone to have political au-

thority over the rest. He then derives various natural rights from that basis.

We should be clear that our natural rights depend upon our prior du-

ties, namely, duties imposed by the fundamental law of nature and by our

duty to obey God, who has legitimate authority over us. So within Locke’s

view, understood as a theological doctrine, we are not self-authenticating

sources of valid claims, as I have used that term in characterizing the con-

ception of the person in justice as fairness.

This is because our claims are

founded, within Locke’s conception, on prior duties owed to God. How-

ever, within a political society that guarantees liberty of conscience, say

(which Locke’s afﬁrms), these claims when made by citizens will be self-

authenticating, in the sense that from that society’s political point of view,

these claims are self-imposed.

5. Finally, it is very important that the fundamental law of nature is a

distributive, not an aggregative, principle. By this I mean that it does not di-

rect us to strive for the greatest public good, say, to preserve the greatest

number of persons. Rather, it expresses concern for each person: while

mankind is to be preserved, in so far as is possible, so is every member of

mankind (¶134). Moreover, as complemented by other premises (God’s si-

lence about political authority and the fact of equality), the law of nature as-

signs certain equal natural rights to all persons (who possess the powers of

reason and are capable of being masters of themselves).

Moreover, these rights are to have very great weight. Locke will argue

that, beginning from the state of nature as a state of equal political jurisdic-

tion, legitimate political authority can arise only by consent. This provides

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17. See John Rawls, Justice as Fairness: A Restatement, p. 23, where the term is used to

describe persons’ regarding themselves as being entitled to make claims on their institu-

tions so as to advance their conceptions of the good.

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