1.1 Locke as the subject of this thesis
1.1.3 The importance of Locke’s validation of natural law limits in modern society 11
1.1.3 The importance of Locke’s validation of natural law limits in modern society
The following information explains why I think Locke’s natural law limitations could be a good guiding basis for today’s societal needs. Today’s natural resources have changed drastically since Locke’s time, when there were “plenty of natural provisions . . . and few spenders.”35 Land was considered useless if not cultivated, and the use and cultivation of land actually increased the benefit of the common stock.36
Today, many ecologists, some of whom are listed in the following paragraphs, conclude that with the increase in population, international industry, and misuse of natural resources for consistent and systematic industrial profit, humanity has taken control over nature. For example, according to Chan (1989),
“The situation is now drastically different. The western frontier of the last century is gone; population has multiplied; the economy has grown large; and resources are being depleted at an alarming rate. Environmental protection and natural resources preservation take on added urgency. As a result, natural resources management must be approached differently, mindful of these new societal concerns.”37
Many recognized ecologists agree that there is a need to preserve natural resources, not only for the benefit of future generations but also for our own self-preservation.38 An increasing number of jurists recognize the deficiency in the current legal system in dealing with the ecological crisis of our time. They argue that society desperately needs to restore the ecological equilibrium,39 and such restoration requires the legal system to fundamentally change its basic definition of rights.40
Many of those jurists try to justify raising animal and vegetation rights to the same level of human rights. Interestingly, they often blame the current positive law definition of property for being the result of the “tremendous advances in material production made possible by the Industrial Revolution” as well as “the political philosophy of John Locke.”41 This also explains my choice of Locke.42
Considering the above need for our legal system to redefine the very basis of property, I argue
35 Locke II, 31.
36 Locke says, “[H]e who appropriates land to himself by his labour, does not lessen, but increase the common stock of mankind” (Locke II, 37, emphasis added).
37 Chan, (1989), 193–201. Further, he states, “The Conservation Movement represented the recognition of two opposing trends: declining ability of nature to sustain humanity and simultaneous increasing demands placed on nature by humanity. To head off disaster that could bring about drastic reductions in the standard of living, the policy of wise use and scientific management was implemented.” Ibid., 195. See also Barbour, (1980), 26.
38 Chan, (1989) concludes his very interesting articles as follows: “[F]inally there is the practical question of whether we have any realistic alternative to ignoring nature’s right to ecological integrity. Present conditions seem to suggest the negative, for in the final analysis, we are dependent on a healthy environment for survival.”
Chan, (1989), 200, emphasis added. The same view is argued by other well known ecologists like Carson, (1962); Shepard, (1982); Berry, (1988), see entire books.
39 A good review is in Shirkova-Tuuli, (1998), 1-9.
40 Stone, (1996), 1–47; Cobb, (1987), 4, 24–25. Good overviews include Berry, (1999) and Culliman, (2003), entire books. Chan, (1989) adds, “What is needed is to recognize that these problems are institutional in nature and that any solution must involve changing the way property is defined relative to resource use and management. . . . That would entail a evaluation of the human domineering attitude toward nature and a re-examination of humanity’s interrelationship with nature” for the purpose of “greater restraints [to] be placed on how nature is treated and how resources are used.” Chan, (1989), 193–201 (emphasis added).
41 Chan, (1989), 194.
42 As a solid foundation, refer to the arguments of Macpherson and his followers, p. 68.
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that Locke’s philosophy of property rights, the same philosophy that is considered to be the root of the problem of the positive law of property, can be used to justify the conservation of natural resources. Locke’s emphasis on natural law limits justifies government restrictions on wasteful ownership, better management of natural resources, and preservation of animal life.
Applying Locke’s natural law limits to positive law may cause a rapid evolution in the positive law of property to better protect natural resources and animals.
Locke’s use of natural law limits provides a possible answer for how to enjoy the eternal protection of individual property rights while limiting the need for such protection for the self out of respect for the rights of others. Locke’s property theory, with its respect for natural law limits, provides solid guidance for the current need of the legal system to better protect natural resources and animal life as well as better preserve a peaceful creation as a whole. This, as I argue in this thesis, is the purpose of the natural law and its limits.43
1.1.4 A return to natural law in light of different positive law bases
Many civilizations have been governed using variations of positive law without reference to the superior guidance of natural law and its moral limits for the preservation of mankind.
Many people have argued that such disregard for natural law goes against mankind’s own interest in self-preservation; this position often is supported with reference to Nazism.
Going back to natural law as a guiding moral law that has followed humanity from its very beginning would yield a solid answer to the current needs of society to better protect the environment, animal life, and mankind itself.44 The arguments in this thesis are based on the basic idea that natural law stands eternal and superior to positive law, which is to be guided and interpreted by natural law, in accordance with the needs of society. I support this idea with reference to Locke’s understanding of natural law as well as his origins. For Locke, natural law is superior and applies even after the creation of governments and their regulation of property rights.45
I corroborate this thesis by comparing Locke and his relevant references to Grotius46 and Pufendorf,47 whom Locke reviewed for the development of his texts.48 This helps in the
43 Locke II, 7.
44 For a good defence of the use of natural law today, see entire article of Donald, (2011). Find in bibliography under internet sites. See also against the utilitarian movement on p. 209, p. 26 and; footnotes No. 425 and No.
135.
45 See Locke II, 159; Part 3.1, p. 18.
46 Hugo Grotius (1583-1645) was widely considered one of the founders of international law and the science of law in general (Pound, (1925), 685), as well as one of the most important representatives in the school of natural law, Aufricht, (1962), 578.
47 Samuel Pufendorf (1632-1694) was also a great representative of the school of natural law due to his consistent and systematic natural law theory (Pound, (1925), 685).
48 It is argued that Locke relied on the works of Grotius and Pufendorf on the law of nature. See Laslett, (1963), 74, 137, 142. In 1697, Locke recommended that Lord Mordaunt read “Pufendorf, Aristotle and above all the New Testament.” For a confirmation and a good review of the comparison of Locke, Grotius, and Pufendorf, see Olivecrona, (1974), Appropriation in the State of Nature, 211-230; this work was the inspiration for the comparison of these authors in this thesis.
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corroboration of my interpretation of Locke as based not only on my personal view of Locke’s texts but also on the similar views of other teachers of natural law.
Due to the large number of references within this paper and to avoid repetition, I have construed my argumentation to facilitate an understanding of the subject matter. Under each heading, I demonstrate all of Locke’s references supporting my arguments from the Second Treatise and other Locke sources while analysing the same. This is followed by the modern debate on the relevant problems and as further corroboration, a comparison of the relevant references from Locke’s origins.
Some of my arguments have been analysed and re-analysed hundreds of times and interpreted in innumerable ways. This thesis corroborates prior analyses and concludes that Locke emphasised the importance of natural law limits as timelessly while also referencing additional limits. This thesis seeks to demonstrate the importance Locke placed on the responsibility humanity has for all of creation, made evident by his concern for the preservation of others, his moral use of reason, and his use of the state of nature.
14 2 Central Theses
I divide this work into three central theses: