21. The doctrine here asserted, that all rights are relative to moral ends or duties, must not be confused with the ordinary statement that every right implies a duty, or that rights and duties are correlative. This of course is true in the sense that possession of a right by any person both implies an obligation on the part of someone else, and is conditional upon the recognition of certain obligations on the part of the person possessing it. But what is meant is something different, viz. that the claim or right of the individual to have certain powers secured to him by society, and the counter-claim of society to exercise certain powers over the individual, alike rest on the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others.
22. This, however, is not the ground on which the claim in question has generally been asserted. Apart from the utilitarian theory, which first began to be applied politically by Hume, the ordinary way of justifying the civil rights of individuals (i.e. the powers secured to them by law as against each other), as well as the rights of the state against individuals (i.e. the powers which, with the general approval of society, it exercises against them), has been to deduce them from certain supposed prior rights, called natural rights. In the exercise of these natural rights, it has been supposed, men with a view to their general interest established political society. From that establishment is derived both the system of rights and obligations maintained by law as between man and man, and the right of the state to the submission of its subjects. If the question, then, is raised, why I ought to respect the legal rights of my neighbours, to pay taxes, or have my children vaccinated, serve in the army if the state requires it, and generally submit to the law, the answer according to this theory will be that if I fail to do so, I shall directly or indirectly be violating the natural rights of other men; directly in those cases where the legal rights of my neighbours are also natural rights, as they very well may be (e.g. rights of liberty or personal safety); indirectly where this is not the case, because, although the rights of the state itself are not natural, and many rights exercised by individuals would not only not be secured but would not exist at all but for legal enactment, yet the state itself results from a covenant which originally, in the exercise of their natural rights, men made with each other, and to which all born under the state and sharing the advantages derived from it must be considered parties. There is a natural right, therefore, on the part of each member of a state to have this compact observed, with a corresponding obligation to observe it; and this natural right of all is violated by any individual who refuses to obey the law of the state or to respect the rights, not in themselves natural, which the state confers on individuals.
23. This, on the whole, was the form in which the ground of political obligation, the justification of established rights, was presented throughout the seventeenth century, and in the eighteenth till the rise of the 'utilitarian' theory of obligation. Special adaptations of it were made by Hobbes and others. In Hobbes, perhaps (of whom more later), may be found an effort to fit an anticipation of the utilitarian theory of political obligation into the received theory which traced political obligation, by means of the supposition of a primitive contract, to an origin in natural right. But in him as much as anyone the language and framework of the theory of compact is retained, even if an alien doctrine may be read between the lines. Of the utilitarian theory of political obligation more shall be said later. It may be presented in a form in which it would scarcely be distinguishable from the doctrine just now stated, the doctrine, viz., that the ground of political obligation, the reason why certain powers should be recognised as belonging to the state and certain other powers as secured by the state to individuals, lies in the fact that these powers are necessary to the fulfilment of man's vocation as a moral being, to an effectual self-devotion to the work of developing the perfect character in himself and others. Utilitarianism proper, however, recognises no vocation of man but the attainment of pleasure and avoidance of pain. The only reason why civil rights should be respected—the only justification of them—according to it, would be that more pleasure is attained or pain avoided by the general respect for them; the ground of our consciousness that we ought to respect them, in other words their ultimate sanction, is the fear of what the consequences would be if we did not. This theory and that which I deem true have one negative point in common. They do not seek the ground of actual rights in a prior natural right, but in an end to which the maintenance of the rights contributes. They avoid the mistake of identifying the inquiry into the ultimate justifiability of actual rights with the question whether there is a prior right to the possession of them. The right to the possession of them, if properly so called, would not be a mere power, but a power recognised by a society as one which should exist. This recognition of a power, in some way or other, as that which should be, is always necessary to render it a right. Therefore when we had shown that the rights exercised in political society were derived from prior 'natural' rights, a question would still remain as to the ground of those natural rights. We should have to ask why certain powers were recognised as powers which should be exercised, and thus became these natural rights.
24. Thus, though it may be possible and useful to show how the more seemingly artificial rights are derived from rights more simple and elementary, how the rights established by law in a political society are derived from rights that may be called natural, not in the sense of being prior to society, but in the sense of being prior to the existence of a society governed by written law or a recognised sovereign, still such derivation is no justification of them. It is no answer to the question why they should be respected; because this question remains to be asked in regard to the most primitive rights themselves. Political or civil rights, then, are not to be explained by derivation from natural rights, but in regard to both political and natural rights, in any sense in which there can be truly said to be natural rights, the question has to be asked, how it is that certain powers are recognised by men in their intercourse with each other as powers that should be exercised, or of which the possible exercise should be secured.
25. I have tried to show in lectures on morals that the conception expressed by the 'should be' is not identical with the conception of a right possessed by some man or men, but one from which the latter conception is derived. It is, or implies on the part of whoever is capable of it, the conception of an ideal, unattained condition of himself, as an absolute end. Without this conception the recognition of a power as a right would be impossible. A power on the part of anyone is so recognised by others, as one which should be exercised, when these others regard it as in some way a means to that ideal good of themselves which they alike conceive: and the possessor of the power comes to regard it as a right through consciousness of its being thus recognised as contributory to a good in which he too is interested. No one therefore can have a right except (1) as a member of a society, and (2) of a society in which some common good is recognised by the members of the society as their own ideal good, as that which should be for each of them. The capacity for being determined by a good so recognised is what constitutes personality in the ethical sense; and for this reason there is truth in saying that only among persons, in the ethical sense, can there come to be rights; (which is quite compatible with the fact that the logical disentanglement of the conception of rights precedes that of the conception of the legal person; and that the conception of the moral person, in its abstract and logical form, is not arrived at till after that of the legal person).
Conversely, everyone capable of being determined by the conception of a common good as his own ideal good, as that which unconditionally should be (of being in that sense an end to himself), in other words, every moral person, is capable of rights; i.e. of bearing his part in a society in which the free exercise of his powers is secured to each member through the recognition by each of the others as entitled to the same freedom with himself. To say that he is capable of rights, is to say that he ought to have them, in that sense of 'ought' in which it expresses the relation of man to an end conceived as absolutely good, to an end which, whether desired or no, is conceived as intrinsically desirable. The moral capacity implies a consciousness on the part of the subject of the capacity that its realisation is an end desirable in itself, and rights are the condition of realising it. Only through the possession of rights can the power of the individual freely to make a common good his own have reality given to it. Rights are what may be called the negative realisation of this power. That is, they realise it in the sense of providing for its free exercise, of securing the treatment of one man by another as equally free with himself, but they do not realise it positively, because their possession does not imply that in any active way the individual makes a common good his own. The possession of them, however, is the condition of this positive realisation of the moral capacity, and they ought to be possessed because this end (in the sense explained) ought to be attained.
26. Hence on the part of every person ('person' in the moral sense explained) the claim, more or less articulate and reflected on, to rights on his own part is co-ordinate with his recognition of rights on the part of others. The capacity to conceive a common good as one's own, and to regulate the exercise of one's powers by reference to a good which others recognise, carries with it the consciousness that powers should be so exercised; which means that there should be rights, that powers should be regulated by mutual recognition. There ought to be rights, because the moral personality,—the capacity on the part of an individual for making a common good his own,—ought to be developed; and it is developed through rights; i.e. through the recognition by members of a society of powers in each other contributory to a common good, and the regulation of those powers by that recognition.
27. In saying that only among 'persons' can there come to be rights, and that every 'person' should have rights, I have been careful to explain that I use 'person' in the moral, not merely in the legal, sense. In dealing, then, with such phrases as 'jura personarum' and 'personal rights,' we must keep in view the difference between the legal and ethical sense of the proposition that all rights are personal, or subsist as between persons. In the legal sense, so far as it is true,—and it is so only if 'person' is used in the sense of Roman law,—it is an identical proposition. A person means a subject of rights and nothing more. Legal personality is derived from the possession of right, notvice versa. Like other identical propositions, its use is to bring out and emphasise in the predicate what is included in the understood connotation of the subject; to remind us that when we speak of rights we imply the existence of parties, in English phraseology, capable of suing and being sued. In the ethical sense, it means that rights are derived from the possession of personality as = a rational will (i.e. the capacity which man possesses of being determined to action by the conception of such a perfection of his being as involves the perfection of a society in which he lives), in the sense(a)that only among beings possessed of rational will can there come to be rights,(b)that they fulfil their idea, or are justifiable, or such rights as should be rights, only as contributing to the realisation of a rational will. It is important to bear this distinction in mind in order that the proposition in its ethical sense, which can stand on its own merits, may not derive apparent confirmation from a juristic truism.
28. The moral idea of personality is constantly tending to affect the legal conception of the relation between rights and persons. Thus the 'jura personarum,' which properly = either rights arising out of 'status,' or rights which not only (like all rights) reside in someone having a legal status and are available against others having a legal status, but are exercised over, or in respect of, someone possessed of such status (e.g. a wife or a servant), come to be understood as rights derived from the human personality or belonging to man as man. It is with some such meaning that English writers on law speak of rights to life and liberty as personal rights. The expression might seem pleonastic, since no right can exist except as belonging to a person in the legal sense. They do not use the phrase either pleonastically or in the sense of the Roman lawyers' 'jura personarum' above, but in the sense that these rights are immediately derived from, or necessarily attach to, the human personality in whatever that personality is supposed to consist. There is no doubt, however, that historically the conception of the moral person, in any abstract form, is not arrived at till after that of the legal person has been thus disentangled and formulated; and further that the abstract conception of the legal person, as the sustainer of rights, is not arrived at till long after rights have been actually recognised and established. But the disentanglement or abstract formulation of the conception of moral personality is quite a different thing from the action of the consciousness in which personality consists.
29. The capacity, then, on the part of the individual of conceiving a good as the same for himself and others, and of being determined to action by that conception, is the foundation of rights; and rights are the condition of that capacity being realised. No right is justifiable or should be a right except on the ground that directly or indirectly it serves this purpose. Conversely every power should be a right, i.e. society should secure to the individual every power, that is necessary for realising this capacity. Claims to such powers as are directly necessary to a man's acting as a moral person at all—acting under the conception of a good as the same for self and others—may be called in a special sense personal rights (though they will include more than Stephen includes under that designation); they may also be called, if we avoid misconceptions connected with these terms, 'innate' or 'natural' rights. They are thus distinguished from others which are (1) only indirectly necessary to the end stated, or (2) are so only under special conditions of society; as well as from claims which rest merely on legal enactment and might cease to be enforced without any violation of the 'jus naturae.'
30. The objection to calling them 'innate' or 'natural,' when once it is admitted on the one side that rights are not arbitrary creations of law or custom but that there are certain powers which ought to be secured as rights, on the other hand that there are no rights antecedent to society, none that men brought with them into a society which they contracted to form, is mainly one of words. They are 'innate' or 'natural' in the same sense in which according to Aristotle the state is natural: not in the sense that they actually exist when a man is born and that they have actually existed as long as the human race, but that they arise out of, and are necessary for the fulfilment of, a moral capacity without which a man would not be a man. There cannot be innate rights in any other sense than that in which there are innate duties, of which, however, much less has been heard. Because a group of beings are capable each of conceiving an absolute good of himself and of conceiving it to be good for himself as identical with, and because identical with, the good of the rest of the group, there arises for each a consciousness that the common good should be the object of action, i.e. a duty, and a claim in each to a power of action that shall be at once secured and regulated by the consciousness of a common good on the part of the rest, i.e. a right. There is no ground for saying that the right arises out of a primary human capacity, and is thus 'innate,' which does not apply equally to the duty.
31. The dissociation of innate rights from innate duties has gone along with the delusion that such rights existed apart from society. Men were supposed to have existed in a state of nature, which was not a state of society, but in which certain rights attached to them as individuals, and then to have formed societies by contract or covenant. Society having been formed, certain other rights arose through positive enactment; but none of these, it was held, could interfere with the natural rights which belonged to men antecedently to the social contract or survived it.
Such a theory can only be stated by an application to an imaginary state of things, prior to the formation of societies as regulated by custom or law, of terms that have no meaning except in relation to such societies. 'Natural right,' as = right in a state of nature which is not a state of society, is a contradiction. There can be no right without a consciousness of common interest on the part of members of a society. Without this there might be certain powers on the part of individuals, but no recognition of these powers by others as powers of which they allow the exercise, nor any claim to such recognition; and without this recognition or claim to recognition there can be no right.
32. Spinoza is aware of this. In theTractatus Politici, IT. 4, he says, 'Perjusitaquenaturaeintelligo … ipsam naturae potentiam.' [1] … 'Quicquid unusquisque homo ex legibus suae naturae agit, id summo naturae jure agit, tantumque in naturam habet juris, quantum potentia valet.' If only, seeing that the 'jus naturae' was mere 'potentia,' he had denied that it was 'jus' at all, he would have been on the right track. Instead of that, however, he treats it as properly 'jus,' and consistently with this regards all 'jus' as mere 'potentia': nor is any 'jus humanum' according to him guided by or the product of reason. It arises, in modern phrase, out of the 'struggle for existence.' As Spinoza says, 'homines magis caeca cupiditate quam ratione ducuntur; ac proinde hominum naturalis potentia sive jus non ratione, sed quocumque appetitu quo ad agendum determinantur, quoque se conservare conantur, definiri debet' (II. 5). The 'jus civile' is simply the result of the conflict of natural powers, which = natural rights, which arises from the effort of every man to gratify his passions and 'suum esse conservare.' Man is simply a 'pars naturae,' the most crafty of the animals. 'Quatenus homines ira, invidia aut aliquo odii affectu conflictantur, eatenus diverse trahuntur et invicem contrarii sunt, et propterea eo plus timendi, quo plus possunt, magisque callidi et astuti sunt, quam reliqua animalia; et quia homines ut plurimum his affectibus natura sunt obnoxii, sunt ergo homines ex natura hostes' (II. 14). Universal hostility means universal fear, and fear means weakness. It follows that in the state of nature there is nothing fit to be called 'potentia' or consequently 'jus'; 'atque adeo concludimus jus naturae vix posse concipi nisi ubi homines jura habent communia, qui simul terras, quas habitare et colere possunt, sibi vindicare, seseque munire, vimque omnem repellere et ex communi omnium sententia vivere possunt. Nam (per art. 13 hujus cap.) quo plures in unum sic conveniunt, eo omnes simul plus juris habent' (15). The collective body, i.e., has more 'jus in naturam,' i.e. 'potentiam,' than any individual could have singly (13). In the advantage of this increased 'jus in naturam' the individual shares. On the other hand (16), 'Ubi homines jura communia habent omnesque una veluti mente ducuntur, certum est (per art. 13 hujus cap.) eorum unumquemque tanto minus habere juris, quanto reliqui simul ipso potentiores sunt, hoc est, ilium revera jus nullum in naturam habere praeter id, quod ipsi commune concedit jus. Ceterum quicquid ex communi consensu ipsi imperatur, teneri exsequi vel (per art. 4 hujus cap.) jure ad id cogi.' This 'jus' by which the individual's actions are now to be regulated, is still simply 'potentia.' 'Hoc jus, quod multitudinis potentia definitur, imperium appellari solet' (17). It is not to be considered anything different from the 'jus naturae.' It is simply the 'naturalis potentia' of a certain number of men combined; 'multitudinis quae una veluti mente ducitur' (III. 2). Thus in the 'status civilis' the 'jus naturae' of the individual in one sense disappears, in another does not. It disappears in the sense that the individual member of the state has no mind to act or power to act against the mind of the state. Anyone who had such mind or power would not be a member of the state. He would be an enemy against whose 'potentia' the state must measure its own. On the other hand, 'in statu civili,' just as much as 'in statu naturali,' 'homo ex legibus suae naturae agit suaeque utilitati consulit' (3). He exercises his 'naturalis potentia' for some natural end of satisfying his wants and preserving his life as he did or would do outside the 'status civilis.' Only in the 'status civilis' these motives on the part of individuals so far coincide as to form the 'una veluti mens' which directs the 'multitudinis potentia.' According to this view, any member of a state will have just so much 'jus,' i.e. 'potentia,' against other members as the state allows him. If he can exercise any 'jus' or 'potentia' against another 'ex suo ingenio,' he is so far not a member of the state and the state is so far imperfect. If he could exercise any 'jus' or 'potentia' against the state itself, there would be no state, or, which is the same, the state would not be 'sui juris.'
[1] [Many of the Latin passages quoted in this chapter are translated in Bosanquet's Supplement. Tr]
33. Is there then no limit to the 'jus' which the state may exercise? With Spinoza this is equivalent to the question, is there no limit to the 'potentia' which it can exercise? As to this, he suggests three considerations.
(1). Its power is weakened by any action against right reason, because this must weaken the 'animorum unio' on which it is founded. 'Civitatis jus potentia multitudinis, quae una veluti mente ducitur, determinatur. At haec animorum unio concipi nulla ratione posset, nisi civitas id ipsum maxime intendat, quod sana ratio omnibus hominibus utile esse docet' (III. 7).
(2). The 'right' or 'power' of the state depends on its power of affecting the hopes and fears of individual citizens…. 'Subditi eatenus non sui, sed civitatis juris sint, quatenus ejus potentiam seu minas metuunt, vel quatenus statum civilem amant (per art. 10 praeced. cap.). Ex quo sequitur, quod ea omnia, ad quse agenda nemo praemiis aut minis induci potest, ad jura civitatis non pertineant' (III. 8). Whatever cannot be achieved by rewards and threats, is beyond the power and therefore beyond the 'right' of the state. Examples are given in the same section.
(3). 'Ad civitatis jus ea minus pertinere, quae plurimi indignantur' (III. 9). Severities of a certain kind lead to conspiracies against the state, and thus weaken it. 'Sicut unusquisque civis sive homo in statu naturali, sic civitas eo minus sui juris est, quo majorem timendi causam habet.'
Just so far then as there are certain things which the state cannot do, or by doing which it lessens its power, so far there are things which it has no 'right' to do.
34. Spinoza proceeds to consider the relation of states or sovereign powers to each other. Here the principle is simple. They are to each other as individuals in the state of nature, except that they will not be subject to the same weaknesses. 'Nam quandoquidem (per art. 2 hujus cap.) jus summae potestatis nihil est praeter ipsum naturae jus, sequitur duo imperia ad invicem sese habere, ut duo homines in statu naturali, excepto hoc, quod civitas sibi cavere potest, ne ab alia opprimatur, quod homo in statu naturali non potest, nimirum qui quotidie somno, saepe morbo aut animi aegritudine, et tandem senectute gravatur, et prater haec aliis incommodis est obnoxius, a quibus civitas securam se reddere potest' (III. 11). In other words, '… duae civitates natura hostes sunt. Homines enim in statu naturali hostes sunt. Qui igitur jus naturae extra civitatem retinent, hostes manent' (III. 13). The 'jura belli' are simply the powers of any one state to attack or defend itself against another. The 'jura pacis,' on the other hand, do not appertain to any single state, but arise out of the agreement of two at least. They last as long as the agreement, the 'foedus,' lasts; and this lasts as long as the fear or hope, which led to its being made, continues to be shared by the states which made it. As soon as this ceases to be the case, the agreement is necessarily at an end, 'nec dici potest, quod dolo vel perfidia agat, propterea quod fidem solvit, simulatque metus vel spei causa sublata est, quia haec conditio unicuique contrahentium aequalis fuit, ut scilicet quae prima extra metum esse potest, sui juris esset, eoque ex sui animi sententia uteretur, et praeterea quia nemo in futurum contrahit nisi positis prsecedentibus circumstantiis' (III. 14).
35. It would seem to follow from the above that a state can do no wrong, in the sense that there are no rights that it can violate. The same principle is applicable to it as to the individual. 'In statu naturali non dari peccatum, vel si quis peccat, is sibi, non alteri peccat: … nihil absolute naturae jure prohibetur, nisi quod nemo potest' (II. 18). A state is to any other state, and to its subjects, as one individual to another 'in statu naturali.' A wrong, a 'peccatum,' consists in a violation by individuals of the 'commune decretum.' There can be no 'peccare' on the part of the 'commune decretum' itself. But 'non id omne, quod jure fieri dicimus, optime fieri affirmamus. Aliud namque est agrum jure colere, aliud agrum optime colere; aliud, inquam, est sese jure defendere, conservare, judicium ferre, &c, aliud sese optime defendere, conservare, atque optimum judicium ferre; et consequenter aliud est jure imperare et reipublicae curam habere, aliud optime imperare et rempublicam optime gubernare. Postquam itaque de jure cujuscumque civitatis in genere egimus, tempus est, ut de optimo cujuscumque imperii statu agamus' (V. 1). Hence a further consideration 'de optimo cujusque imperii statu.' This is guided by reference to the 'finis status civilis,' which is 'pax vitaeque securitas.' Accordingly that is the best government under which men live in harmony, and of which the rights are kept inviolate. Where this is not the case, the fault lies with the government, not with any 'subditorum malitia.' 'Homines enim civiles non nascuntur, sed fiunt. Hominum praeterea naturales affectus ubique iidem sunt' (V. 2).
The end is not fully attained where men are merely kept in order by fear. Such a state of things is not peace but merely absence of war. 'Pax enim non belli privatio, sed virtus est, quae ex animi fortitudine oritur;[1] est namque obsequium constans voluntas id exsequendi, quod ex communi civitatis decreto fieri debet' (V. 4).
The 'peace,' then, which it is the end of the state to obtain, consists in rational virtue; in a common mind, governed by desire on the part of each individual for perfection of being in himself and others. The harmony of life, too, which is another way of expressing its object, is to be understood in an equally high sense. The life spoken of is one 'quae maxime ratione, vera mentis virtute et vita, definitur.'
The 'imperium' which is to contribute to this end must clearly be one 'quod multitudo libera instituit, non autem id, quod in multitudinem jure belli acquiritur.' Between the two forms of 'imperium' there may be no essential difference in respect of the 'jus' which belongs to each, but there is the greatest in respect of the ends which they serve as well as in the means by which they have to be maintained (V. 6).
[1] For the definition of 'fortitudo,' seeEthics, III. 59, Schol. 'Omnes actiones quae sequuntur ex affectibus qui ad mentem referuntur, quatenus intelligit, ad fortitudinem refero, quam in animositatem et generositatem distinguo. Nam per animositatem intelligo cupiditatem, qua unusquisque conatur suum esse ex solo rationis dictamine conservare. Per generositatem … cupiditatem qua unusquisque ex solo rationis dictamine conatur reliquos homines juvare et sibi amicitia jungere.'
36. This conclusion of Spinoza's doctrine of the state does not seem really consistent with the beginning. At the outset, no motives are recognised in men but such as render them 'natura hostes.' From the operation of these motives the state is supposed to result. Each individual finds that the war of all against all is weakness for all. Consequently the desire on the part of each to strengthen himself, which is a form of the universal effort 'suum esse conservare,' leads to combination, it being discovered that 'homini nihil homine utilius' (Eth. IV. 18. Schol.). But we are expressly told that the civil state does not bring with it other motives than those operative 'in statu naturali.' 'Homo namque tam in statu naturali quam civili ex legibus suae naturae agit, suaeque utilitati consulit.' But then it appears that there supervenes or may supervene on such motives 'constans voluntas id exsequendi quod ex communi civitatis decreto fieri debet,' and that not of a kind which seeks to carry out the 'commune decretum' as a means of escaping pain or obtaining pleasure, for it is said to arise from the 'animi fortitudo' which rests on reason ('ad mentem refertur quatenus intelligit') and includes 'generositas' defined as above. It is also said that the true object of 'imperium' is 'vitam concorditer transigere' or 'vitam colere' in a sense of 'vita' in which it 'maxime ratione … definitur.' And as the 'imperium' established for this end is one which 'multitudo libera instituit,' it seems [1] to be implied that there is a desire for such an end on the part of the people. It is not explained how such desires should arise out of the conflict of 'naturales potentiae' or out of the impulses which render men 'natura hostes.' On the other hand, if the elements of them already exist in the impulses which lead to the formation of the 'status civilis,' the reasons for saying that men are 'natura hostes' disappear, and we get a different view of 'jus,' whether 'naturale' or 'civile,' from that which identifies it simply with 'potentia.' Some power of conceiving and being interested in a goodas common, some identification of the 'esse' of others with the 'suum esse' which every man, as Spinoza says, seeks to preserve and promote, must be supposed in those who form the most primitive social combinations, if these are to issue in a state directed to such ends and maintained by such a 'constans voluntas' as Spinoza describes. And it is the interest of men in a common good, the desire on the part of each which he thinks of others as sharing, for a good which he conceives to be equally good for them, that transforms mere 'potentia' into what may fitly be called 'jus,' i.e. a power claiming recognition as exercised or capable of being exercised for the common good.
[1] Certainly this is so, if we apply to the 'libera multitudo' the definition of freedom applied to the 'liber homo.' 'Hominem eatenusliberumomnino voco, quatenus ratione ducitur, quia eatenus ex causis, quae per solam eius naturam possunt adaequate intelligi, ad agendum determinatur, tametsi ex iis necessario ad agendum determinetur. Nam libertas agendi necessitatem non tollit, sed ponit'(II. 11).
37. If this qualification of 'potentia' which alone renders it 'jus' had been apprehended by Spinoza, he would have been entitled to speak of a 'jus naturale' as preceding the 'jus civile,' i.e. of claims to the recognition of powers and the actual customary recognition of such, as exercised for a common good, preceding the establishment of any regular institutions or general laws for securing their exercise. As it is, the term 'jus naturale' is with him really unmeaning. If it means no more than 'potentia,' why call it 'jus'? 'Jus' might have a meaning distinct from that of 'potentia' in the sense of a power which a certain 'imperium' enables one man to exercise as against another. This is what Spinoza understands by 'jus civile.' But there is no need to qualify it as 'civile,' unless 'jus' may be employed with some other qualification and with a distinctive meaning. But the 'jus naturale,' as he understands it, has no meaning other than that of 'potentia,' and his theory as it stands would have been more clearly expressed if instead of 'jus naturale' and 'jus civile' he had spoken of 'potentia' and 'jus,' explaining that the latter was a power on the part of one man against others, maintained by means of an 'imperium' which itself results from a combination of 'powers.' He himself in one passage shows a consciousness of the impropriety of speaking of 'jus' except with reference to a community; 'jus naturae, quod humani generis proprium est, vix posse concipi, nisi ubi homines jura habent communia, qui simul terras, quas habitare et colere possunt, sibi vindicare, seseque munire, vimque omnem repellere et ex communi omnium sententia vivere possunt' (II. 15). He takes no notice, however, of any forms of community more primitive than that of the state. The division into the 'status naturalis' and the 'status civilis' he seems to treat as exhaustive, and the 'status naturalis' he regards, after the manner of his time, as one of pure individualism, of simple detachment of man from man, or of detachment only modified by conflict. From such a 'status naturalis,' lacking both the natural and the rational principles of social development (the natural principle, i.e. the interest in others arising primarily from family ties, and the rational principle, i.e. the power of conceiving a good consisting in the more perfect being of the individual and of those in whom he is interested), no process could be traced to the 'status civilis.' The two 'status' stand over against each other with an impassable gulf between. 'Homines civiles non nascuntur, sed fiunt.' They are so made, he seems to hold, by the action of the 'imperium' upon them. But how is the 'imperium' to be made? Men must first be, if not 'civiles,' yet something very different from what they are in the 'status naturalis,' between which and the 'status civilis' Spinoza recognises no middle term, before any 'imperium' which could render them 'civiles' could be possible.
38. The cardinal error of Spinoza's 'Politik' is the admission of the possibility of a right in the individual apart from life in society, apart from the recognition by members of a society of a correlative claim upon and duty to each other, as all interested in one and the same good. The error was the error of his time, but with Spinoza it was confirmed by his rejection of final causes. The true conception of 'right' depends on the conception of the individual as being what be really is in virtue of a function which he has to fulfil relatively to a certain end, that end being the common well-being of a society. A 'right' is an ideal attribute ('ideal' in the sense of not being sensibly verifiable, not reducible to any perceivable fact or facts) which the individual possesses so far as this function is in some measure freely fulfilled by him—i.e. fulfilled with reference to or for the sake of the end—and so far as the ability to fulfil it is secured to him through its being recognised by the society as properly belonging to him. The essence of right lies in its being not simply a power producing sensible effects, but a power relative to an insensible function and belonging to individuals only in so far as each recognises that function in himself and others. It is not in so far as Icando this or that, that I have a right to do this or that, but so far as I recognise myself and am recognised by others as able to do this or that for the sake of a common good, or so far as in the consciousness of myself and others I have a function relative to this end. Spinoza, however, objects to regard anything as determined by relation to a final cause. He was not disposed therefore to regard individuals as being what they are in virtue of functions relative to the life of society, still less as being what they are in virtue of the recognition by each of such functions in himself and others. He looked upon man, like everything else in nature, as determined by material and efficient causes, and as himself a material and efficient cause. But as such he has no 'rights' or 'duties,' but only 'powers.'
39. It was because Plato and Aristotle conceived the life of the πόλις [1] so clearly as the τέλος of the individual, relation to which makes him what he is—the relation in the case of the πολίτης proper being a conscious or recognised relation—that they laid the foundation for all true theory of 'rights.' It is true that they have not even a word for 'rights.' The claims which in modern times have been advanced on behalf of the individual against the state under the designation 'natural rights' are most alien from their way of thinking. But in saying that the πόλις was a 'natural' institution and that man was φύσει πολιτικός, Aristotle, according to the sense which he attached to πόλις, was asserting the doctrine of 'natural rights' in the only sense in which it is true. He regards the state (πόλις) as a society of which the life is maintained by what its members do for the sake of maintaining it, by functions consciously fulfilled with reference to that end, and which in that sense imposes duties; and at the same time as a society from which its members derive the ability, through education and protection, to fulfil their several functions, and which in that sense confers rights. It is thus that the πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι. Man, being φύσει πολίτης,—being already in respect of capacities and tendencies a member of such a society, existing only in κοινωνίαι which contain its elements,—has 'naturally' the correlative duties and rights which the state imposes and confers. Practically it is only the Greek man that Aristotle regards as φύσει πολίτης, but the Greek conception of citizenship once established was applicable to all men capable of a common interest. This way of conceiving the case, however, depends on the 'teleological' view of man and the forms of society in which he is found to live, i.e. on the view of men as being what they are in virtue of non-sensible functions, and of certain forms of life determined by relation to more perfect forms which they have the capacity or tendency to become.
[1] [Greek πόλις (polis) = city, τέλος (telos) = end or purpose, πολίτης (polites) = citizen, φύσει πολίτης or φύσει πολιτικός (physei polites or politikos) = social or a citizen by nature, πολίτης μετέχει τοῦ ἄρχειν καὶ τοῦ ἄρχεσθαι (polites metechei tou archein kai tou archesthai) = a citizen by turns rules and is ruled, κοινωνίαι (koinoniai) = associations. Tr]
40. Spinoza, like Bacon, found the assumption of ends which things were meant to fulfil in the way of accurate inquiry into what things are (materially) and do. He held Plato and Aristotle cheap as compared with Democritus and Epicurus (Epist. LX. 13). Accordingly he considers the individual apart from his vocation as a member of society, the state apart from its office as enabling the individual to fulfil that vocation. Each, so considered, is merely a vehicle of so much power (natural force). On the other hand, he recognises a difference between a higher and lower, a better and worse, state of civil society, and a possibility of seeking the better state because it is understood to be better. And this is to admit the possibility of the course of human affairs being affected by the conception of a final cause. It is characteristic of Spinoza that while he never departs from the principle 'homo naturae pars,' he ascribes to him the faculty of understanding the order of nature, and of conforming to it or obeying it in a new way on account of that understanding. In other words, he recognised the distinction called by Kant the distinction between determination according to law and determination according to the consciousness of law; though in his desire to assert the necessity of each kind of determination he tends to disguise the distinction and to ignore the fact that, if rational determination (or the determination by a conception of a law) is a part of nature, it is so in quite a different sense from determination merely according to laws of nature. As he puts it, the clear understanding that we are parts of nature, and of our position in the universe of things, will yield a new character. We shall only then desire what is ordained for us and shall find rest in the truth, in the knowledge of what is necessary. This he regards as the highest state of the individual, and the desire to attain it he evidently considers the supreme motive by which the individual should be governed. The analogue in political life to this highest state of the individual is the direction of the 'imperium' by a 'libera multitudo' to the attainment of 'pax vitaeque securitas' in the high sense which he attaches to those words inTract. Pol. cap. V. [1]
[1] Cp.Eth. IV.Appendix, xxxii. 'Ea quae nobis eveniunt contra id, quod nostrae utilitatis ratio postulat, aequo animo feremus, si conscii simus nos functos nostro officio fuisse, et potentiam, quam habemus, non potuisse se eo usque extendere, ut eadem vitare possemus, nosque partem totius naturae esse, cujus ordinem sequimur. Quod si clare et distincte intelligamus, pars illa nostri, quae intelligentia definitur, hoc est, pars melior nostri, in eo plane acquiescet et in ea acquiescentia perseverare conabitur. Nam quatenus intelligimus, nihil appetere nisi id, quod necessarium est, nec absolute nisi in veris acquiescere possumus; adeoque quatenus haec recte intelligimus, eatenus conatus melioris partis nostri cum ordine totius naturae convenit.'Eth. IV. Preface … 'Perbonum… intelligam id, quod certo scimus medium esse, ut ad exemplar humanae naturae, quod nobis proponimus, magis magisque accedamus…. Deinde hominesperfectioresautimperfectioresdicemus, quatenus ad hoc idem exemplar magis aut minus accedunt.'
41. The conclusion, then, is that Spinoza did really, though not explicitly, believe in a final cause determining human life. That is to say, he held that the conception of an end consisting in the greater perfection of life on the part of the individual and the community might, and to some extent did, determine the life of the individual and the community. He would have said no doubt that this end, like every good, existed only in our consciousness; that it was 'nihil positivum in rebus in se consideratis' (Ethics, IV. Preface); but an existence of the end in human consciousness, determining human action, is a sufficiently real existence, without being 'positivum in rebus.' But he made the mistake of ignoring the more confused and mixed forms in which the conception of this end operates; of recognising it only in the forms of the philosophic 'amor Dei,' or in the wisdom of the exceptional citizen, whom alone he would admit 'ratione duci.' And in particular he failed to notice that it is the consciousness of such an end to which his powers may be directed, that constitutes the individual's claim to exercise them as rights, just as it is the recognition of them by a society as capable of such direction which renders them actually rights; in short that, just as according to him nothing is good or evil but thinking makes it so, so it is only thinking that makes a might a right,—a certain conception of the might as relative to a social good on the part at once of the person or persons exercising it, and of a society which it affects.
42. All the more fruitful elements in Spinoza's political doctrine are lacking in that of Hobbes, but the principle of the two theories is very much the same. Each begins with the supposition of an existence of human individuals, unaffected by society, and each struggling for existence against the rest, so that men are 'natura hostes.' Each conceives 'jus naturale' as = 'potentia naturalis.' But Spinoza carries out this conception much more consistently. He does not consider that the natural right, which is might, ceases to exist or becomes anything else when a multitude combine their natural rights or mights in an 'imperium.' If the ostensible 'imperium' comes into collision with the powers of individuals, single or combined, among those who have hitherto been subject to it, and proves the weaker, itipso factoceases to be an 'imperium.' Not having superior power, it no longer has superior right to the 'subditi.' It is on this principle, as we have seen, that he deals with the question of limitations to the right of a sovereign. Its rights are limited because its powers are so. Exercised in certain ways and directions they defeat themselves. Thus as he puts it inEpist. L. (where he points out his difference from Hobbes), 'Supremo magistratui in qualibet urbe non plus in subditos juris, quam juxta mensuram potestatis, qua subditum superat, competere statuo.' Hobbes, on the other hand, supposes his sovereign power to have an absolute right to the submission of all its subjects, singly or collectively, irrespectively of the question of its actual power against them. This right he considers it to derive from a covenant by which individuals, weary of the state of war, have agreed to devolve their 'personae,' in the language of Roman law, upon some individual or collection of individuals, which is henceforward to represent them, and to be considered as acting with, their combined powers. This covenant being in the nature of the case irrevocable, the sovereign derives from it an indefeasible right to direct the actions of all members of the society over which it is sovereign.
43. The doctrine may be found inLeviathan, Part II., chapter 17. In order 'to erect such a common power as may be able to defend them from the invasion of foreigners and the injuries of one another,' men 'confer all their power and strength upon one man or upon one assembly of men,' … i.e. 'appoint one man or assembly of men to bear their person…. This is more than consent and concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such a manner as if every man should say to every man, 'I authorise, and give up my right of governing myself to this man or this assembly of men, on condition that thou give up thy right to him and authorise all his actions in like manner.' This done, the multitude so united in one person is called a commonwealth, in Latincivitas… which (to define it) is one person, of whose acts a great multitude by mutual covenant one with another have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence. And he that carrieth this person is called sovereign, and said to have sovereign power; and everyone besides, his subject.'
44. In order to understand the form in which the doctrine is stated, we have to bear in mind the sense in which 'persona' is used by the Roman lawyers, as = either a complex of rights, or the subject (or possessor) of those rights, whether a single individual or a corporate body. In this sense of the word, a man's person is separable from his individual existence as a man. 'Unus homo sustinet plures personas.' A magistrate, e.g., would be one thing in respect of what he is in himself, another thing in respect of his 'persona' or complex of rights belonging to him as a magistrate, and so too a monarch. On the same principle, a man, remaining a man as before, might devolve his 'persona,' the complex of his rights, on another. A son, when by the death of his father according to Roman law he was delivered from 'patria potestas' and became in turn head of a family, acquired a 'persona' which he had not before, the 'persona' which had previously belonged to the father. Again, to take a modern instance, the fellows of a college, as a corporation, form one 'persona,' but each of them would bear other 'persons,' if, e.g., they happened to be magistrates, or simply in respect of their rights as citizens. Thus 'one person' above = one sustainer of rights; while in the second passage, … 'carrieth this person,' it rather = the rights sustained.
45. Hobbes expressly states that the sovereign 'person' may be anassemblyof men, but the natural associations of the term, when the sovereign is spoken of as a person, favour the development of a monarchical doctrine of sovereignty.
Sovereign power is attained either by acquisition or institution. By acquisition, when a man makes his children and their children, or a conqueror his enemies, to submit under fear of death. By institution, when men agree among themselves to submit to some man or assembly 'on confidence to be protected against all others.' Hobbes speaks (II. 17, end) as if there were two ways by which a commonwealth and a sovereign defined as above could be brought into existence, but clearly a sovereign by acquisition is not a sovereign in the sense explained. He does not 'carry a person of whose acts a great multitude bymutual covenantone with another, have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defence.' And what Hobbes describes in the sequel (c. 18) are, as he expressly says, rights of sovereigns by institution; but he seems tacitly to assume that every sovereign may claim the same, though he could hardly have supposed that the existing sovereignties were in their origin other than sovereignties by acquisition.
'A commonwealth is said to be instituted, when a multitude of men covenant, everyone with everyone, that to whatsoever man or assembly of men shall be given by the major part the right to represent the person of them all, everyone, as well he that voted for it as he that voted against it, shall authorise all the actions and judgments of that man or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and to be protected against other men' (c. 18). Here a distinction is drawn between the covenant of all with all to be bound by the act of the majority in appointing a sovereign, and that act of appointment itself which is not a covenant of all with all. The natural conclusion would be that it was no violation of the covenant if the majority afterwards transferred the sovereign power to other hands. But in the sequel Hobbes expressly makes out such a transference to be a violation of the original compact. This is an instance of his desire to vindicate the absolute right of ade factomonarch.
46. Throughout these statements we are moving in a region of fiction from which Spinoza keeps clear. Not only is the supposition of the devolution of wills or powers on a sovereign by a covenant historically a fiction (about that no more need be said); the notion of an obligation to observe this covenant, as distinct from a compulsion, is inconsistent with the supposition that there is no right other than power prior to the act by which the sovereign power is established. If there is no such right antecedent to the establishment of the sovereign power, neither can there be any after its establishment except in the sense of a power on the part of individuals which the sovereign power enables them to exercise. This power, or 'jus civile,' cannot itself belong to the sovereign, who enables individuals to exercise it. The only right which can belong to the sovereign is the 'jus naturale,' [1] consisting in the superiority of his power, and this right must be measured by the inability of the subjects to resist. If theycanresist, the right has disappeared. In a successful resistance, then, to an ostensibly sovereign power, there can on the given supposition be no wrong done to that power. To say that there is, would be a contradiction in terms. Is such resistance, then, a violation of the 'jus civile' as between the several subject citizens? In the absence of a sovereign power, no doubt, the 'jus civile' (according to the view in question, which makes it depend on the existence of an 'imperium') would cease to exist. But then a successful resistance would simply show that there was no longer such a sovereign power. It would not itself be a violation of 'jus civile,' but simply a proof that the conditions of 'jus civile' were no longer present. It might at the same time be a step to re-establishing them if, besides being a proof that the old 'imperium' no longer exists, it implied such a combination of powers as suffices to establish a new one.
[1] 'The 'jus naturale' is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say of his own life; and consequently of doing anything which in his own judgment and reason he shall conceive to be the aptest means thereunto.' (Lev., I. 14.)
47. No obligation, then, as distinct from compulsion, to submit to an ostensibly sovereign power can consistently be founded on a theory according to which right either = simple power, or only differs from it, in the form of 'jus civile,' through being a power which an 'imperium' enables individuals to exercise as against each other. Hobbes could not, indeed, have made out his doctrine (of the absolute submission to the sovereign) with any plausibility, if he had stated with the explicitness of Spinoza that 'jus naturale' = 'naturalis potentia.' That it is so is implied in the account of the state of things preceding the establishment of sovereignty as one of 'bellum omnium contra omnes'; for where there is no recognition of a common good, there can be no right in any other sense than power. But where there are no rights but natural power, no obligatory covenant can be made. In order, however, to get a sovereignty, to which there is a perpetual obligation of submission, Hobbes has to suppose a covenant of all with all, preceding the establishment of sovereignty, and to the observance of which, therefore, there cannot be an obligation in the sense that the sovereign punishes for the non-observance (the obligation corresponding to 'jus civile' in Spinoza's sense), but which no one can ever be entitled to break. As the obligatoriness of this covenant, then, cannot be derived from the sovereignty which is established through it, Hobbes has to ascribe it to a 'law of nature' which enjoins 'that men perform their covenants made' (Lev., I. 15). Yet in the immediate sequel of this passage he says expressly, 'The nature of justice consisteth in the keeping of valid covenants, but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them; and then it is also that propriety begins.' On this principle the covenant by which a civil power is for the first time constituted cannot be a valid covenant. The men making it are not in a position to make a valid covenant at all. The 'law of nature,' to which alone Hobbes can appeal according to his principles, as the source of the obligatoriness of the covenant of all with all, he defines as 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 taketh away the means of preserving the same; and to omit that by which he thinketh it may best be preserved' (I. 14). When a law of nature, however, is said to command or forbid, we must not understand those terms in that sense which, according to Hobbes, could only be derived from the establishment of an 'imperium.' This 'law of nature,' therefore, is merely an expression in a general form of the instinct by which, as Spinoza says, every living creature 'in suo esse perseverare conatur,' as guided by a calculation of consequences (for no meaning but this can be given to 'reason' according to Hobbes). The prohibition, then, by this law of nature of a breach of that covenant of all with all, by which a sovereign power is supposed to be established, can properly mean nothing more than that it is everyone's interest to adhere to it. This, however, could only be a conditional prohibition, conditional, in particular, on the way in which the sovereign power is exercised. Hobbes tries to show that it must always be for the advantage of all to obey it, because not to do so is to return to the state of universal war; but a successful resistance to it must beipso factoan establishment of a new combined power which prevents the 'bellum omnium contra omnes' from returning. At any rate, an obligation to submit to the established 'imperium,' measured by the self-interest of each in doing so, is quite a different thing from the obligation which Hobbes describes in terms only appropriate (according to his own showing) to contracts between individuals enforced by a sovereign power.
48. It would seem that Hobbes' desire to prove all resistance to established sovereignty unjustifiable leads him to combine inconsistent doctrines. He adopts the notion that men are 'natura hostes,' that 'jus naturale' = mere power, because it illustrates the benefit to man's estate derived from the establishment of a supreme power and the effects of the subversion of such power once established, which he assumes to be equivalent to a return to a state of nature. But this notion does not justify the view that a rebellion, which is strong enough to succeed, is wrong. For this purpose he has to resort to the representation of the sovereign as having a right distinct from power, founded on a contract of all with all, by which sovereignty is established. This representation is quite alien to Spinoza, with whom sovereignty arises, it is true, when 'plures in unum conveniunt,' but in the sense of combining their powers, not of contracting. But after all, the fiction of this contract will not serve the purpose which Hobbes wants it to serve. The sovereignty established by the contract can only have anaturalright to be maintained inviolate, for all other right presupposes it, and cannot be presupposed by it. If this natural right means mere power, then upon a successful rebellion it disappears. If it means anything else it must mean that there are natural rights of men, other than their mere power, which are violated by its subversion. But if there are such rights, there must equally be a possibility of collision between the sovereign power and these natural rights, which would justify a resistance to it.
49. It may be asked whether it is worth while to examine the internal consistency of a theory which turns upon what is admitted to be historically a fiction, the supposition of a contract of all with all. There are fictions and fictions however. The supposition that some event took place which as a matter of history did not take place may be a way of conveying an essentially true conception of some moral relation of man. The great objection to the representation of the right of a sovereign power over subjects, and the rights of individuals which are enforced by this 'imperium,' as having arisen out of a contract of all with all, is that it conveys a false notion of rights. It is not merely that the possibility of such a contract being made presupposes just that state of things—arégimeof recognised and enforced obligations—which it is assumed to account for. Since those who contract must already have rights, the representation of society with its obligations as formed by contract implies that individuals have certain rights, independently of society and of their functions as members of a society, which they bring with them to the transaction. But such rights abstracted from social function and recognition could only be powers, or (according to Hobbes' definition) liberties to use powers, which comes to the same; i.e. they would not be rights at all; and from no combination or devolution of them could any right in the proper sense, anything more than a combined power, arise.
50. Thus the only logical development of that separation of right from social duty which is implied in the doctrine of 'social contract' is that of Spinoza. Happily the doctrine has not been logically developed by those whose way of thinking has been affected by it. The reduction of political right—the right of the state over its subjects—to superior power, has not been popularly accepted, though the general conception ofnationalright seems pretty much to identify it with power. Among the enlightened, indeed, there has of late appeared a tendency to adopt a theory very like that of Spinoza, without the higher elements which we noticed in Spinoza; to consider all right as a power attained in that 'struggle for existence' to which human 'progress' is reduced. But for one person, who, as a matter of speculation, considers the right of society over him to be a disguised might, there are thousands who, as a matter of practice, regard their own right as independent of that correlation to duty without which it is merely a might. The popular effect of the notion that the individual brings with him into society certain rights which he does not derive from society,—which are other than claims to fulfil freely (i.e. for their own sake) certain functions towards society,—is seen in the inveterate irreverence of the individual towards the state, in the assumption that he has rights against society irrespectively of his fulfilment of any duties to society, that all 'powers that be' are restraints upon his natural freedom which he may rightly defy as far as he safely can.
51. It was chiefly Rousseau who gave that cast to the doctrine of the origin of political obligation in contract, in which it best lends itself to the assertion of rights apart from duties on the part of individuals, in opposition to the counter-fallacy which claims rights for the state irrespectively of its fulfilment of its function as securing the rights of individuals. It is probably true that theContrat Socialhad great effect on the founders of American independence, an effect which appears in the terms of the Declaration of Independence and in preambles to the constitutions of some of the original American states. But the essential ideas of Rousseau are to be found in Locke'sTreatise of Civil Government, which was probably well known in America for half a century before Rousseau was heard of. [1] Locke again constantly appeals to Hooker's first book onEcclesiastical Polity,[2] and Grotius[3] argues in exactly the same strain.
Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their application of the same conception; viz. that men live first in a state of nature, subject to a law of nature, also called the law of reason; that in this state they are in some sense free and equal; that 'finding many inconveniences' in it they covenant with each other to establish a government—a covenant which they are bound by the 'law of nature' to observe—and that out of this covenant the obligation of submission to the 'powers that be' arises. Spinoza alone takes a different line: he does not question the state of nature or the origin of government in a combination of men who find the state of nature 'inconvenient'; but he regards this combination as one of powers directed to a common end, and constituting superior force, not as a covenant which men are bound by the law of nature to observe.
[1] Locke,Civil Government, chap. vii. sec. 87. 'Man, being born with a title to perfect freedom, and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man or number of men in the world, hath by nature a power not only to preserve his life, liberty, and estate against … other men; but to judge of and punish the breaches of that law in others…. There, and there only, is political society where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it.'
[2] 'Laws human, of what kind soever, are available by consent,' Hooker,Eccl. Pol. I. 10 (quoted by Locke,l.c.chap. xi. sec. 134). 'To be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.' Hooker;ibid.
[3]De jure belli et pacis, Proleg. secs. 15 and 16.
52. The common doctrine is so full of ambiguities that it readily lends itself to opposite applications. In the first place 'state of nature' may be understood in most different senses. The one idea common to all the writers who suppose such a state to have preceded that of civil society is a negative one. It was a state which wasnotone of political society, one in which there was no civil government; i.e. no supreme power, exercised by a single person or plurality of persons, which could compel obedience on the part of all members of a society, and was recognised as entitled to do so by them all, or by a sufficient number of them to secure general obedience. But was it one of society at all? Was it one in which men had no dealings with each other except in the way of one struggling to make another serve his will and to get for himself what the other had, or was it one in which there were ties of personal affection and common interest, and recognised obligations, between man and man? Evidently among those who spoke of a state of nature, there were very various and wavering conceptions on this point. They are apt to make an absolute opposition between the state of nature and the political state, and to represent men as having suddenly contracted themselves out of one into the other. Yet evidently the contract would have been impossible unless society in a form very like that distinctively called political had been in existence beforehand. If political society is to be supposed to have originated in a pact at all, the difference between it and the preceding state of nature cannot, with any plausibility, be held to have been much more than a difference between a society regulated by written law and officers with defined power and one regulated by customs and tacitly recognised authority.
53. Again, it was held that in a state of nature men were 'free and equal.' This is maintained by Hobbes as much as by the founders of American independence. But if freedom is to be understood in the sense in which most of these writers seem to understand it, as a power of executing, of giving effect to, one's will, the amount of freedom possessed in a state of nature, if that was a state of detachment and collision between individuals, must have been very small. Men must have been constantly thwarting each other, and (in the absence of that 'jus in naturam,' as Spinoza calls it, which combination gives) thwarted by powers of nature. In such a state those only could be free, in the sense supposed, who werenotequal to the rest; who, in virtue of superior power, could use the rest. But whether we suppose an even balance of weaknesses, in subjection to the crushing forces of nature, or a dominion of few over many by means of superior strength, in such a state of nature no general pact would be possible. No equality in freedom is possible except for members of a society of whom each recognises a good of the whole which is also his own, and to which the free co-operation of all is necessary. But if such society is supposed in the state of nature—and otherwise the 'pact' establishing political society would be impossible—it is already in principle the same as political society.
54. It is not always certain whether the writers in question considered men to be actually free and equal in the state of nature, or only so according to the 'law of nature,' which might or might not be observed. (Hobbes represents the freedom and equality in the state of nature as actual, and this state as being for that reason 'bellum omnium contra omnes.') They all, however, implicitly assume aconsciousnessof the law of nature in the state of nature. It is thus not a law of nature in the sense in which we commonly use the term. It is not a law according to which the agents subject to it act necessarily but without consciousness of the law. It is a law of which the agent subject to it has a consciousness, but one according to which he may or may not act; i.e. one according to which heoughtto act. It is from it that the obligation to submission to civil government, according to all these writers, is derived. But in regard to such a law, two questions have to be asked: firstly, how can the consciousness of obligation arise without recognition by the individual of claims on the part of others—social claims in some form or other—which may be opposed to his momentary inclinations? and secondly, given a society of men capable of such a consciousness of obligation, constituting a law according to which the members of the society are free and equal, in what does it differ from a political society? If these questions had been fairly considered, it must have been seen that the distinction between a political society and a state of nature, governed by such a law of nature, was untenable; that a state of things out of which political society could have arisen by compact, must have been one in which the individual regarded himself as a member of a society which has claims on him and on which he has claims, and that such society is already in principle a political society. But the ambiguity attending the conception of the law of nature prevented them from being considered. When the writers in question spoke of a law of nature, to which men in the state of nature were subject, they did not make it clear to themselves that this law, as understood by them, could not exist at all without there being some recognition or consciousness of it on the part of those subject to it. The designation of it as 'law of nature' or 'law of God' helped to disguise the fact that there was no imponent of it, in the sense in which a law is imposed on individuals by a political superior. In the absence of such an imponent, unless it is either a uniformity in the relations of natural events or an irresistible force—and it is not represented in either of these ways in juristic writings—it can only mean a recognition of obligation arising in the consciousness of the individual from his relations to society. But this not being clearly realised, it was possible to represent the law of nature as antecedent to the laws imposed by a political superior, without its being observed that this implied the antecedence of a condition of things in which the result supposed to be obtained through the formation of political society—the establishment, viz. of reciprocal claims to freedom and equality on the part of members of a society—already existed.
55. In fact, the condition of society in which it could properly be said to be governed by a law of nature, i.e. by an obligation of which there is no imponent but the consciousness of man, an obligation of which the breach is not punished by a political superior, is not antecedent to political society, but one which it gradually tends to produce. It is the radical fault of the theory which finds the origin of political society in compact, that it has to reverse the true process. To account for the possibility of the compact of all with all, it has to assume a society subject to a law of nature, prescribing the freedom and equality of all. But a society governed by such a law as a law of nature, i.e. with no imponent but man's consciousness, would have been one from which political society would have been a decline, one in which there could have been no motive to the establishment of civil government. Thus this theory must needs be false to itself in one of two ways. Either it is false to the conception of a law of nature, with its prescription of freedom and equality, as governing the state of things prior to the compact by which political society is established, only introducing the law of nature as the ground of the obligatoriness of that compact, but treating the state of nature as one of universal war in which no reciprocal claims of any sort were recognised, (so Hobbes); or just so far as it realises the conception of a society governed by a law of nature, as equivalent to that spontaneous recognition by each of the claims of all others, without which the covenant of all with all is in fact unaccountable, it does away with any appearance of necessity for the transition from the state of nature to that of political society and tends to represent the latter as a decline from the former. This result is seen in Rousseau; but to a great extent Rousseau had been anticipated by Locke. The broad differences between Locke and Hobbes in their development of the common doctrine, are (1) that Locke denies that the state of nature is a state of war, and (2) that Locke distinguishes the act by which political society is established from that by which the government, legislative and executive, is established, and is consequently able to distinguish the dissolution of the political society from the dissolution of the government (Civ. Gov. Chapter XIX. Sect. 211).
56. The 'state of nature' and the 'state of war' 'are so far distant as a state of peace, good-will, mutual assistance and preservation, and a state of enmity, malice, violence, and mutual destruction, are from one another. Men living together, according to reason, without a common superior on earth with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war' (Civ. Gov. III. Sect. 19). In the state of nature, however, when the state of war has once begun, there is not the same means of terminating it as in civil society.
The right of war may belong to a man, 'though he be in society and a fellow-subject,' when his person or property is in such immediate danger that it is impossible to appeal for relief to the common superior. 'But when the actual force is over, the state of war ceases between those that are in society … because there lies the remedy of appeal for the past injury and to prevent future harm.' In the state of nature, when the state of war has once begun, it continues until the aggressor offers peace and reparation. The state of war, though not proper to the state of nature, is a frequent incident of it, and to avoid it is one great reason of men's putting themselves into society (ib. Sect. 21). The state of nature is not one that is altogether over and done with. 'All rulers of independent governments all through the world are in a state of nature.' The members of one state in dealing with those of another are in a state of nature, and the law of nature alone binds them. 'For truth and keeping of faith belongs to men as men, and not as members of society' (Civ. Gov. II. Sect. 14). 'All men are naturally in that state and remain so till by their own consents they make themselves members of some politic society' (ib. Sect. 15).
57. The antithesis, as put above, between the state of nature and the state of war, can only be maintained on the supposition that the 'law of nature' is observed in a state of nature. Locke does not explicitly state that this is the case. If it were so, it would not appear how the state of war should arise in the state of nature. But he evidently thought of the state of nature as one in which men recognised the law of nature, though without fully observing it. He quotes with approval from Hooker language which implies that not only is the state of nature a state of equality, but that in it there is such consciousness of equality with each other on the part of men that they recognise the principle 'do as you would be done by' (Civ. Gov. II. Sect. 5). With Hobbes, in the supposed state of nature the 'law of nature' is emphaticallynotobserved, and hence it is a state of war. As has been pointed out above, a 'law of nature' in the sense in which these writers use the term, as a law which obliges but yet has no imponent in the shape of a sovereign power, is, as Locke says (Sect. 136), 'nowhere to be found but in the minds of men'; it can only have its being in the consciousness of those subject to it. If therefore we are to suppose a state of nature in which such a law of nature exists, it is more consistent to conceive it in Locke's way than in that of Hobbes; more consistent to conceive it as one in which men recognise duties to each other than as a 'bellum omnium contra omnes.'