Conclusions on Locke and the superior place of natural law

Locke’s own references from the Second Treatise as demonstrated above suggest that he holds natural law to be superior even after the creation of society; this is also confirmed by modern authors’ interpretations and other natural law authors such as Grotius and Pufendorf.

There is thus nothing new in this interpretation. The superiority of natural law is confirmed by almost all natural law thinkers, from ancient to current, including thinkers on whom Locke relied. My demonstrations from different texts only confirm that Locke followed this natural law thinking and gave natural law a superior moral place in guiding positive law.

Locke’s text demonstrates that he never intended to do away with natural law limits and create private property without limits, contrary to the claim of Macpherson and his followers.²⁸¹ This and the following chapter demonstrate that Locke saw natural law as the eternal, superior law that is timelessly valid, even after private property rights were established. His texts show that even after the introduction of money, and after Locke added consent as a necessary condition for governmental property rights, natural law limits still stood as a moral guide.

278 Pufendorf, (1672), De iure Naturae, Vol. II, Lib.3, Cap. 1.

279 Pufendorf, (1672), De iure Naturae, Vol. II, entire Lib.1. See footnote 280 below for a direct quotation.

280 Pufendorf, (1672), De iure Naturae, Vol. II, Lib. 3, Cap. 19.

281 See Macpherson, (1962), 210-273; Strauss, (1953), 221-248; Schlatter, (1951), 151; Day, (1966), 207–220;

Squadrito, (1979), 255–258.

55 3.2 Locke’s understanding of natural law 3.2.1 Precepts of natural law

Separate from the thesis arguments, this specific allows the reader to better understand Locke’s use of natural law. As superior moral guidelines, the principles of natural law are recognized by natural law historians as restricted to the most important general principles so that they can be interpreted according to society’s relevant needs, capacities, and time.²⁸² For Locke, “the Natural law is unwritten, and nowhere to be found but in the minds of men, they who through passion or interest shall miscite and misapply it, cannot so easily be convinced of their mistakes where there is no established judge” (Locke II, 136, emphasis added).

Locke explained that the law of nature can only be found within the minds of men. Passions or self-interests blind the minds of men so that they misapply natural law. It is thus impossible for the law of nature to be written unless the majority becomes rational, for it will be misapplied by the irrational part of the population. Locke therefore asserted that only rational men can apply natural law limits justly, for they understand natural law from a sincere, disinterested point of view. In other words, natural law can only be found in the mind of those men who are rational and sincerely act for the good of the whole. The rest are blinded by passions and self-interests.²⁸³

Rommen (1936) asserted this indeterminacy of natural law precepts, noting that the natural law remains latent so that the positive law can better complete it for any given societal capacity:

“Under a constitutional, free government with the added safeguards of a bill of rights there exists a strong presumption that the positive law is a determination and a derivation of the natural law. For this reason and also because of the consequent de facto legal peace, which enables and permits men to accept without further scrutiny the order of positive law, the idea of natural law remains as it were latent.”²⁸⁴

Simmons (1992) claimed that Locke did not clearly define the law of nature.²⁸⁵ The different bases of argumentation²⁸⁶ might explain why Locke left the definition of natural law vague;

this would leave the range of interpretation wide enough to suit different societal conditions.

Grotius called the law of nature the “law which is a law not written, but created by nature.”²⁸⁷ Pufendorf noted,

“Again, since many precepts of the natural law are indefinite, their application being left to the discretion of every man, the civil law, with a view to the order and tranquility of the state, is accustomed to assign to such actions their time, manner,

282 S.L.R., (1957), 484. The exercise of a right depends in part upon a “given society’s concrete possibilities.”

Ibid., 102. Jacques Maritain (Thomists) goes so far as to say that “it is fitting at times, as history advances, to forget the exercise of certain rights which we nevertheless continue to possess.” Ibid., 102–103.

283 See Locke II, 12, 124 and more on p. 29, p. 32, and p. 177.

284 S.L.R., (1957), 511 citing Rommen, (1936), 262 (emphasis added).

285 See his analysis on p. 69.

286 See p. 9 and Simmons, (1992), 11, 48 and the book as a whole.

287 Straumann, (2006), 338 citing Grotius, (1868 ed.), De iure, Bk. 1, Ch. 4. Grotius provides no clear list of the principals of the law of nature. See Grotius, (1625), War and Peace, Bk. II, Ch. 2, Sec. 6. Here, one can see that for Grotius, as followed by Locke, the “written” positive law of property should represent and protect the law of nature that is unwritten.

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place, and persons, also to determine other circumstances, and at times to encourage men by rewards to undertake them. Also, if there is any obscurity in the natural law, it belongs to the civil law to explain it.”²⁸⁸

Pufendorf, as a source for Locke, confirmed that the law of nature is indefinite and applies to different circumstances. Locke’s texts confirmed the above-mentioned indeterminacy of natural law precepts by revealing no systematic list of natural law provisions.²⁸⁹ Locke is vague and suggests that natural law cannot be understood by all men but only by those who are attuned to the law of reason via the constant use of reason, or rationale. He also indicated that passions and self-interests blind people to the true limits of reason. Locke thus admitted that “the Natural law is unwritten, and nowhere to be found but in the minds of men.”²⁹⁰

Rommen (1936) summarised the basic maxims of natural law as follows: “What is just is to be done, and injustice is to be avoided” and “Give to everyone his own.”²⁹¹ However, the general indeterminacy of natural law does not mean that natural law is to be applied arbitrarily. Natural law is moral in nature, with protected individual rights and correspondent obligations.

Grotius also confirmed the connection between right reason and morality: “the dictate of right reason, showing the moral turpitude, or moral necessity, of any act from its agreement or disagreement with a rational nature, and consequently that such an act is either forbidden or commanded by God, the author of nature.”²⁹² The law of nature is recognized to be moral by rational nature. To Locke, the preservation of all mankind is a “fundamental law of nature”

(Locke II, 16, 135).²⁹³

288 Pufendorf, (1673), On the Duty of Man, Bk. II, Ch. 12, Para. 6, On Civil Laws in Particular.

289 Locke II, 12. See p. 29.

290 Locke II, 136, emphasis added. See also Locke II, 12, 124.

291 Rommen, (1936), 220. See Kenealy, (1955) who summarises, “Natural law does indeed imply the existence of some human rights which are absolute and inalienable, such as the right to life, worship, marriage, property, labor, speech, locomotion, assembly, reputation, etc. These are absolute in the sense that they derive from human nature; they are not mere hand-outs from the state; the state is bound to protect them and cannot destroy them even though, by physical force, the state has sometimes prevented their exercise. They are not absolute in the sense that they are unlimited in scope. It is a commonplace in classical natural law philosophy that human rights, even the most fundamental mentioned above, are limited. They are limited in the sense that they are subject to specification, qualification, expansion and contraction, and even forfeiture of exercise, as the equal rights of others and the demands of the common good from circumstance to circumstance, and from time to time, reasonably indicate. Human rights are absolute only in the sense of the minimal requirements of a just and ordered liberty.” Kenealy, (1955), Whose Natural Law?, 259, 263–264, cited in S.L.R., (1957), 483-484. See also Adler, (1942), 205, 216–219. See also Justinian, (533 AD), Bk. 1, Title 1, Sec. 3.

“Man, considered as a creature, must necessarily be subject to the laws of his Creator. . . . These are the eternal, immutable laws of good and evil, to which the Creator Himself in all His dispensations conforms; and which He has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: that we should live honestly, should hurt nobody, and should render to everyone his due. . . . This law of nature . . . is binding over all the globe, in all countries and at all times; no human laws are of any validity if contrary to this.” Rommen, (1936), 220 citing Blackstone, The Five Thousand Year Leap, 138.

292 Grotius, (1925), War and Peace, Bk. I, Ch. 1, Sec. 10.

293 Mankind as a whole is to be preserved as much as possible.

Sec 134: “the preservation of the society, and (as far as will consist with the public good) of every person in it...”

(emphasis added).

Sec. 135: “so much as the law of nature gave him for the preservation of himself, and the rest of mankind”...

“the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it” (emphasis added).

See also Sec 159: “That as much as may be, all the members of the society are to be preserved…” (emphasis added).

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Locke described the law of nature as a set of moral guidelines found within human nature.²⁹⁴ The aim of natural law is the peaceful and safe preservation of all mankind (Locke II, 7).

Locke noted, “the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and as far as will consist with the public good) of every person in it” (Locke II, 134, emphasis added), “which nature, that willeth the preservation of all mankind as much as is possible (Locke II, 182, emphasis added).

For Locke, the first fundamental law of nature is for all mankind to be preserved. The second fundamental natural law, a negative inference of the first, is that no one be harmed: “[A]ll men may be restrained from invading others rights, and from doing hurt to one another”

(Locke II, 7, emphasis added).

No harm to anyone is emphasised heavily as the most important principle of natural law after the safe preservation of mankind. It is the basis for natural law limits.²⁹⁵ In general, natural law calls for self-preservation conditioned on the obligation to respect the preservation of others for the long-term safe preservation of the whole.²⁹⁶ The no-harm principle applies to other obligations deriving from natural law, depending on their remoteness from this principle of doing no harm.²⁹⁷ Everything that physically harms another is clearly prohibited, such as murder, theft, and adultery. Other principles are less clear when they concern not harming others in a way that may decrease the possibility of life preservation by pursuing harmless goals. Examples may include divorce, slander, and damage to reputation. The fact that each individual has the right to enjoy his or her own peaceful, harmless activities without interference puts a duty on him or her not to interfere with the activities of others. Rommen proposes slander as a relatively indirect natural law principle because it does not harm physically, but its damaging consequences may decrease another’s abilities to pursue his or her own harmless goals.²⁹⁸

Within the Second Treatise, Locke states that each is “born to” a state that includes duties and rights (Locke II, 6, 128). The duty pertains to the preservation of the self and, in the measure of possibility, the preservation of others and the rest of mankind. “Every one as he is bound to preserve himself, and not to quit his station wilfully; so by the like reason when his own

And Sec 171: “conduce to the preservation of himself, and the rest of mankind. So that the end and measure of this power, when in every man's hands in the state of nature, being the preservation of all of his society, that is, all mankind in general...” (emphasis added).

For similar inferences, see also Locke II, 149, 183.

294 See Locke, (1689), Human Understanding, Bk. I. Ch. 3; Bk. II. Ch. 4, Ch. 22, Bk. IV. Ch. 6, Ch. 20.

295 For references, see natural limits and no harm on p. 123.

296 See S.L.R., (1957), 480: “[M]an’s natural inclinations or desires, as classified and ordered by his reason, e.g., the inclination to self-preservation, to procreation, to the acquiring and keeping of property, as tempered by the realization of long-run considerations as well as the immediate, and by the demands of the common good (since man has an equally basic inclination to sociability and is thus a social animal) as well as his individual good.”

297 I.e., Adler, (1942), 205, 397.

298 The damage to one’s reputation may lessen his ability to peacefully pursue harmless goals. Rommen, (1936), 217.

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preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind” (Locke II, 6). This means respect for the same rights to others or not harming others’ life, liberty, health, limbs, or goods (Locke II, 6). This duty refers not only to property such as material possessions but also to the right to life and liberty to peacefully pursue harmless goals for preservation and convenience, without infringing on others’ rights. This, if respecting natural law limits, seeks to guarantee that no one is harmed.

In general, the basic principles of natural law are to enjoy natural liberties and possessions while harming no one. These basic principles of natural law comprise the right to life, property, liberty, and labour, as long as no one is harmed. The role of the governmental state is to better protect those rights and respect them.²⁹⁹ Those rights are not absolute in the sense that they have no limits. Natural law is restricted by the equal rights of others.³⁰⁰

Simmons summarises Locke’s “natural obligations”(Locke II, 6 and 118) as follows: (1) the duty to preserve self (not to put the self in danger); (2) the duty to preserve others (in the measure of possibility or if there is no conflict with the preservation of self); (3) the duty not to kill or “take away the life” of another and not to injure, not to do what “tends to destroy”

others by impairing their “liberty, health, liberty, or possessions” (Locke II, 6); and (4) the duty not to destroy any living creatures in possession except for a nobler cause than preservation of existence.³⁰¹ Tully (1980) also confirms the basic principles: “the preservation of each, including comfort as well as support, entails three natural rights; to preservation, to the liberty of preserving oneself and others, and to the material possession necessary for preservation. Rights to life, liberty and possession are completed and regulated naturally in the state of nature . . . .” Tully further emphasises that for Locke, political power “can have no other end or measure . . . but to preserve the Members of that Society in their Life, Liberties, and Possessions.”³⁰²

To resume, for Locke, in general, the law of nature is unwritten. However, it is moral in nature, corresponding to the aim of natural law being the peaceful preservation of all mankind (Locke II, 7).³⁰³ Locke states that the fundamental natural law is the preservation of all mankind and every person in it and no harm to anyone (Locke II, 7, 134). Further, “and if

“not in competition, ought he, as much as he can, to preserve the rest of mankind” (Locke II,

299 For references, see p. 29 and p. 69.

300 See S.L.R., (1957), 483-484.

301 Based on Locke II, 6, Simmons, (1992) further demonstrates that Locke divides duties into additional categories:

1. Acts that are completely forbidden, such as theft and murder, as the class of perfect negative duties.

Locke, (1689), E.L.N., Essay 7, Para. 193–195. In this regard, Locke writes that “all negative precepts are to be obeyed,” but “positive commands only sometimes on occasions. But we ought always to be furnished with the habits and dispositions to those positive duties in a readiness against those occasions.” Simmons, (1992), 338–341 citing Fox-Bourne, (1876), Sec. 1, 393, “Letter to Grenville,”.

2. Duties requiring sentiments, such as affection for parents and love of others. Locke, (1689), E.L.N., Essay 7, Para. 195.

3. Duties where “the outward performance is commanded” yet “where we are not under obligation continuously, but only at a particular time and in a particular manner.” Examples include worship of God, consoling the distressed, feeding the hungry, and relieving the troubled. Locke explains, “for we are not obliged to provide with shelter and to refresh with food any and every man, or at any time whatever, but only when a poor man’s misfortune calls for our alms and our property supplies means for charity.” Locke, (1689), E.L.N., Essay 7, Para. 195. “Cases where the action in itself is not commanded but only circumstances accompanying it.” One, for example, is not bound to “hold a conversation about his neighbour,” yet if one starts this he is then bound to handle it in a “candid and friendly” manner. Locke, (1689), E.L.N., Essay 7, Para. 195. Simmons, (1992), 338–341.

302 Tully, (1980), 163, relying on Locke II, 171.

303 See analysis on p. 99.

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6) and not kill or harm others in any way that might damage life, liberty, health, limbs, or goods.³⁰⁴ It is also clear that one cannot kill animals in possession unless it is for a nobler cause than self-preservation.³⁰⁵

3.2.2 Interdiction of natural law violation and its consequences

For Locke, the natural law was given for our better protection and peaceful preservation (Locke II, 7). Not following it goes against the safe preservation of mankind. Locke writes,

“In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity” (Locke II, 8, emphasis added). Reason thus guides the

“common equity” or the morality of the law of nature. Going against reason is dangerous to mankind and its preservation. Locke considers reason to be “that measure God has set to the actions of men, for their mutual security” (emphasis added, see below):

“And thus, in the state of nature, one man comes by a power over another; but yet no absolute or arbitrary power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment. In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them . . . .” (Locke II, 8, emphasis added)

According to Locke, not following the law of nature goes against reason and common equity, the same measures given by the Creator to all men for their mutual protection and long-term

According to Locke, not following the law of nature goes against reason and common equity, the same measures given by the Creator to all men for their mutual protection and long-term