Modern debate on the superiority of natural law

Most modern authors now recognize that Locke considered natural law superior in its guiding role. Most modern authors confirm that Locke and his predecessors thought that governmental law merely better protected natural property rights.¹⁵⁹ Donald (2011) demonstrates the superior validity of natural law through historical events:

“The bloody and unsuccessful experiment of Socrates disciple, Critias, showed that the rule of law, not men, was correct. This renewed the question ‘What law, who’s law.’ Not all laws are arbitrary; there must be laws universally applicable, because of the universal nature of man. Laws governing human affairs, or at least some of those laws, must derive from some objective and external reality, “There is in fact a true law—namely, right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal.”¹⁶⁰

Other authors such as Simmons, Ashcraft, Dunn, and Judge agree with Donald and Seliger (1963), who state that positive laws “are only so far right, as they are founded on the law of nature, by which they are to be regulated and interpreted.”¹⁶¹ The basis of argumentation of Seliger, however, is that for Locke, the validity of natural law is independent of the consent of the people and as such superior to positive law.¹⁶²

3.1.6.1 The superiority of natural law after the creation of society

The traditional interpretations of Locke, Macpherson and his followers argue that with the introduction of money, consent becomes the only basis for private property rights. The recognized natural law limit of no spoilage essentially disappears after the consent to use money.¹⁶³ The technical obstacle of no waste is no longer applicable. Men can now accumulate as much as they want without causing a waste because money, as well as gold and diamonds, cannot perish.

Indeed for Locke, it was the introduction of money and men’s agreements on it by tacit consent that created a right to the enlargement of their material property; “had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions, and a right to them” (Locke II, 36).

To Macpherson (1962), it is clear that the intervention of money has allowed men to freely accumulate property while “transcending” Locke’s natural law limits¹⁶⁴: “The introduction of money . . . removed the technical obstacle which . . . had prevented unlimited appropriation from being rational in the moral sense, i.e. being in accordance with the law of nature or law

159 See references within Simmons, (1992), Ch. 6.1.

160 Donald, (2011). “Cicero successfully argued before a Roman court that one of the laws of Rome was unlawful, being contrary to natural law, creating a legal precedent that held throughout the western world for two thousand years. Although it was frequently violated, it was rarely openly rejected in the West until the twentieth century.” Donald, (2011), 5, History, Para. 4 (find in bibliography under internet sites).

161 Seliger, (1963), 351, citing Locke II, 12.

162 “[T]here is little reason to doubt that, for Locke, the validity of natural law is in principle independent of consent, for not only in his theory of labor and property.” Seliger, (1963), 345-346.

163 See, e.g., Macpherson, (1962), 204-235; Steiner, (1977), 44; Moulds, (1964), 187; Strauss, (1953), 221-248;

Schlatter, (1951), 151; Day, (1966), 207–220; Squadrito, (1979), 255–258.

164 Macpherson, (1962), 204.

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of reason.”¹⁶⁵ Scanlon (1981) joined Macpherson and argued that with the introduction of money, “the original moral foundation for property rights is no longer valid, and a new foundation is required. He argues that Locke takes consent to be this foundation.”¹⁶⁶ Strauss (1953) made a similar contention: “[R]estraint of the appetites is replaced by a mechanism whose effect is humane.”¹⁶⁷ According to Strauss, the introduction of money results in the

“emancipation of acquisitiveness”; “man is . . . emancipated from the bonds of nature, and there with the individual is emancipated from those social bonds which antedate all consent or compact.”¹⁶⁸ Macpherson justified his argument by saying that Locke recognized money to be a source of inequalities: “[I]t is plain, that men have agreed to a disproportionate and unequal possession of the earth . . . ” (Locke II 50. See also Locke II 36, 37, emphasis added).

It is a fact that for Locke, before the introduction of money and men’s agreements by tacit consent to give rights to the enlargement of their material property, the needs of men were simple, based on their usefulness to life and the convenience of life (Locke II 36, 37; see below). For example,

“This is certain, that in the beginning, before the desire of having more than man needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh, or a whole heap of corn; though men had a right to appropriate, by their labour, each one of himself, as much of the things of nature, as he could use: yet this could not be much, nor to the prejudice of others, where the same plenty was still left to those who would use the same industry.” (Locke II, 37, emphasis added)¹⁶⁹

Macpherson argued that Locke provides no answer as to why anyone would “desire of having more than man needed” (Locke II, 37) as within his state of nature, where needs “depend only on their usefulness to the life of man” (Locke II, 36–37). Macpherson concluded that Locke was an extreme materialist as his only aim for the accumulation of property was the accumulation of money. To him, Locke “justified the specifically capitalist appropriation of land and money” as a natural right within the state of nature.¹⁷⁰

It is understandable that Macpherson argues that the use of money for Locke was not necessarily morally bad. Economic activity that developed after the introduction of money actually increased the value of the common stock because common stock was no longer dependent on and limited to the scarce quantity of land and natural resources (Locke II, 45).

This, for him, gave everyone the opportunity to increase wealth in different ways. However, Macpherson goes much too far in explaining that for Locke, the community as a whole would

165 Macpherson, (1962), 235.

166 Macpherson, (1962), 235 citing Scanlon, (1981), 126, emphasis added.

167 Strauss, (1953), 240.

168 Strauss, (1953), 248, emphasis added.

169 Indeed, Locke says; “The measure of property nature has well set by the extent of men's labour and the conveniences of life: no man's labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to intrench upon the right of another, or acquire to himself a property, to the prejudice of his neighbour, who would still have room for as good, and as large a possession (after the other had taken out his) as before it was appropriated. This measure did confine every man's possession to a very moderate proportion, and such as he might appropriate to himself, without injury to anybody, in the first ages of the world.” (Locke II, 36, emphasis added).

See also Locke II, 51: “So that there could then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and convenience went together; for as a man had a right to all he could employ his labour upon, so he had no temptation to labour for more than he could make use of.” (Locke II, 51).

170 Macpherson, (1962), 205–207.

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be better off after the introduction of money and that Locke promoted a limitless natural law . Macpherson (1951) concluded that “Locke’s astonishing achievement was to base the property right on natural right, and then to remove all the natural law limitations from the property right”¹⁷¹ (emphasis added).

Although Locke did not explain specifically why men need more than is useful for life, this does not justify Macpherson’s far-reaching conclusion that natural law limits end with the use of money and consent. This goes against Locke’s contention on the superiority of natural law (Locke II, 135, 131, 137) and its limits. ¹⁷²

Locke’s references to the eternal validity of natural law and its limits¹⁷³ oppose the traditional thinking of Macpherson and his followers, who see Locke’s introduction of money as a turning point that breaks the natural bonds of nature and allows unlimited appropriation.

Locke’s own claim of the eternal validity of natural law (Locke II, 135) works against this notion; the positive law exists solely for better protection and is to be regulated accordingly (Locke II, 12).¹⁷⁴ Locke’s Second Treatise also clearly discusses the positive law as a better protection in the unsafe state of nature (Locke II, 13, 37, 92, 101, 123, 124, 126, 127, and 131).¹⁷⁵

Simmons (1992) is a modern corroboration of this notion. Even if Macpherson finds some property inequalities as contributing to the well being of all, it still cannot excuse “unlimited capitalist appropriation.” Simmons further added that to reach this conclusion, Macpherson would have to rely on some of Locke’s texts that Macpherson himself admits to being probable late insertions into the text of chapter 5.¹⁷⁶

Judge,¹⁷⁷ Ashcraft (1986), Von Leyden (1956),¹⁷⁸ and others support the timeless validity of natural law limits.¹⁷⁹ For Locke, “the same law of nature that does by [labour] give us property, does also bind that property too.”¹⁸⁰ I use these and other interpretations to corroborate my argument that for Locke, natural law is eternally valid.¹⁸¹

Dunn (1984) also held that the invention of money was a turning point. He adds that while Locke might not have minded certain limited private property resulting from labour, “Locke felt deeply ambivalent” with regard to private property resulting from money. He had some

“doubts” as to private property resulting from the invention of money after recognizing the consequential inequalities.¹⁸² For Dunn, Locke never denied the “moral fragility of commercial capitalism.”¹⁸³ Dunn is convinced that while “labour had done mankind nothing

171 Macpherson, (1951), 552.

172 See chapter on limitations, p. 210.

173 See also chapter on limitations and Locke’s references to their validity, p. 210.

174 See Locke’s references to natural law superiority on p. 29.

175 See analysis on p. 69.

176 Simmons, (1992), Ch. 5.4, Machpherson, (1962), 212. Other modern interpreters include Waldron, (1979), 323-324; Rapaczynski, (1987), 208-209; Christman, (1986), Philosophy, 167-168 and; Shapiro, (1986), 94.

177 See above p. 31.

178 See above p. 32.

179 See, e.g., Simmons, (1992), Ch. 5.4; Ashcraft, (1986), 85–86; Von Leyden, (1956), 26, 32; p. 29.

180 Locke II, 31.

181 See Modern debate on each natural law limit, p. 210.

182 Dunn, (1984), 41.

183 Dunn, (1984), 40. Ryan, (1988) writes that, “If John Dunn exaggerates … when he says that Locke … ‘had about as much sympathy for unlimited capitalist appropriation as Mao Tse-tung,’ he does not exaggerate much”

(Ryan, (1988), 40 citing Macpherson, (1962), 232-238 and Dunn, (1969), 209).

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but good,” for Locke, “[t]he role of money was altogether more ambiguous.”¹⁸⁴ He argued that Locke was aware of the inequalities of property deriving from the “different degrees of industry” shaped by contract, inheritance, and the invention of money. ¹⁸⁵For him, it is due to money that disputes arose and that “right and conveniency no longer went together.”¹⁸⁶

Tully (1980) goes further than Dunn. According to Tully, Locke felt morally uncomfortable with the use of money¹⁸⁷ and the introduction of money has made possible the inequality of possessions. He goes further and says that for Locke, money is the root of all evil and the source of man’s fall, responsible for the end of a “Golden age” (Locke II, 111). It extended man’s desire for more and encouraged waste. People have started to desire more than needs and conveniences. It was this that allowed the evil desire of unlimited possessions, which was hidden while all individuals lived by necessities alone. For him, money “disrupted the natural order,” and Government was obligated to solve inequalities caused by money so that it is “in line with God’s intentions” of non-dependence and self-government. ¹⁸⁸

It was money that transcended the natural law limits on private property. Tully argues that after the creation of society individuals gave all their natural power to it so that “the relation of member to society is that of part to whole; or like servant to master.”¹⁸⁹ I find that an odd reading of Locke, especially coming from Tully, who is generally against Macpherson. Locke focused on limiting governmental abuse of power so that its role was solely to improve the protection of natural law (Locke II, 111, 131, 134, 135, 159, 171).¹⁹⁰ Tully’s reference to a master and servant relationship is astonishing considering Locke’s clear words that no one can infringe upon another’s life, health or liberties (Locke II, 6) while expressly forbidden the use of a servant unless through a contract for services with money paid: “No body can give more power than he has himself; and he that cannot take away his own life, cannot give another power over it” (Locke II, 23, emphasis added).¹⁹¹

In 1995 Tully stated, “The agreement in the use of money does not ‘justify’ the inequalities.

Rather, it accords artificial value to money and provides ‘a way’ of acquiring fair inequalities, thereby making great inequalities ‘practicable’ or possible, for without money and markets people would have no motive or reason to increase their holdings” (Locke II, 48–49, emphasis added).¹⁹² Most modern authors from all groups thus agree that the use of money is the turning point in political society in transcending the spoilage limitation. I disagree with this tendency and in particular with Dunn and Tully’s view as to the use of money as entirely condemned by Locke. He did not necessarily condemn the use of money but did not treat it as entirely positive in increasing the common stock, as Macpherson claimed. Locke sought to explain this transition from the state of nature (needs based on usefulness) to the use of money, which enlarged ownership of material—not necessarily for luxury, but for comfort and security¹⁹³ because natural resources were “scarce” (Locke II, 45):

“Men, at first, for the most part, contented themselves with what unassisted nature offered to their necessities: and though afterwards, in some parts of the world, (where

184 Dunn, (1984), 40.

185 Dunn, (1984), 39.

186 Dunn, (1984), 40.

187 Tully, (1980), 147-151.

188 Tully, (1980), 147-154. Mentioned within Simmons, (1992), 304.

189 Tully, (1980), 158-161.

190 See analysis of limits on governments for the protection of individuals on p. 100.

191 See p. 62.

192 Tully, (1995), 123.

193 Locke specifically allows for enjoyment of property for comfort and convenience of life. p. 137.

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the increase of people and stock, with the use of money, had made land scarce, and so of some value) the several communities settled the bounds of their distinct territories, and by laws within themselves regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labour and industry began; and the leagues that have been made between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the others possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries, and so have, by positive agreement, settled a property amongst themselves, in distinct parts and parcels of the earth.” (Locke II, 45, emphasis added)

Locke merely contested the use of money after an increase of stock and population when land became scarce. He did not justify or condemn it but noted that consent had become necessary as a basis for property rights. Indeed, Locke knew the introduction of money made possible the preservation of more property than man could consume. “And thus came in the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life” (Locke II 47, emphasis added). ¹⁹⁴

Money is treated like the use to gold and silver, which does not perish. For Locke, property could increase without harming the share of others—“without injury to any one, these metals not spoiling or decaying in the hands of the possessor” (Locke II, 50). Locke made it clear that it is labour that first created the right of property within the state of nature. After the

“increase of population” and “stock” making land scarce, men needed consent to protect property via agreement (Locke II, 45).¹⁹⁵ For Locke, the value added by money was decided by mutual consent so that humans could keep more property without spoiling and exchanging it later for necessities of life. I argue that this enlarges the possibilities to own more property without transgressing the natural law limitation of no waste.¹⁹⁶ But Locke also thought that men had found a way to enlarge their possessions, not necessarily out of greed, but for security and convenience, without causing any harm to the common stock.

My argument finds support in Simmons, Rapaczynski, and Vaughn, who explained that the transition to money is driven by the human will to transcend natural limitations, not necessarily for greed, but to gain security, freedom, self-sufficiency, and comfort.¹⁹⁷ My view is much inspired by Simmons (1992) and Ashcraft (1986), who see money merely as the “last piece of the puzzle.”¹⁹⁸ Locke claimed that the introduction of money “has its value only from the consent of Men” (Locke II, 50, emphasis added). The implication is that consent is required.¹⁹⁹ But consent does not replace the natural law basis of property rights, as Macpherson and his followers (and even Tully) argued. Consent is simply an additional basis for property rights in order to better protect the natural property rights of each person, his/her liberties, and possessions.²⁰⁰ For Locke, the law of nature cannot be binding, in spite of its superiority, at least as long as we live in a world with people not following their own bounds

194 See also Locke II, 36, 38, 50.

195 See p. 37.

196 See chapter on limitations, p. 210.

197 Simmons, (1992), 300 citing Rapaczynski, (1987), 207; and Vaughn, (1980), 103.

198 Simmons, (1992), 302. Many modern authors’ references that I use that are mentioned by Simmons, who provides a good general overview of most interpreters of Locke.

199 See Ashcraft, (1986), 277 and Simmons, (1992), 302.

200 For property rights covering person, liberties, and possessions, see p. 118.

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of reason, biased by their own interests (Locke II, 124).²⁰¹ Because most people are biased by their own interests and have an equal right to self-government, a natural law basis of property rights can be unsafe and insecure (Locke II, 13, 37, 92, 101, 123, 124, 126, 127). ²⁰²

As such, I argue that the consent to use money was a necessary, additional basis of property rights. Consent does not end the natural law limitation of no waste. It only enlarges man’s ability to accumulate property; waste is still not allowed on property that may perish, such as land, products of land, or any other good useful for the convenience of life. Money merely gave men the ability to acquire more; nothing suggests that limits are abolished. It is recognized that money creates inequalities but is not morally wrong. But Tully and Dunn held that for Locke, money was the source of inequality and thus morally wrong.

But Simmons argued that there is no textual support for the view that money is morally wrong. Locke shows some regret as to the introduction of money due to the loss of the “poor but virtuous age” of small possessions (Locke II, 110). However, for Simmons, it is not only the introduction of money but also the “want of people” (Locke II, 108) that allowed the original community based on necessities to exist. He explains that for Locke, it was not only money but also the increase in population that was a source of inequality. Locke could not have opposed an increase in population, so he inferred that Locke did not necessarily oppose money.²⁰³

I partially join Simmons in that Locke did not claim that money was the source of all inequality; natural reasons such as an increase in population contributed. Locke’s Second Treatise clearly states that it is not money but population and stock increase and land scarcity:

“[T]hough afterwards, in some parts of the world, (where the increase of people and stock,

“[T]hough afterwards, in some parts of the world, (where the increase of people and stock,