From Natural Law to Natural Rights in John Locke

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From Natural Law to Natural Rights in John Locke

By Michael Pakaluk

Introduction

The common liberal democratic understanding of political society and its citizen differs in basic ways from the classical accounts one sees for instance in Aristotle, Cicero and St. Thomas. What are some of the main differences? What is the basic shape of the modern turn in political philosophy?

The differences may be blocked out as follows. First, in classical theory, the first object of study is society, and then the nature of government is thought to follow from the nature of society; in modern theory, the nature and limits of government, and “sovereignty”, are considered first, and then society is left to shift for itself, as whatever results from sovereignty so conceived. Second, in classical theory, political society and government arise organically and naturally; in modern theory, society and government are conceived of as artificial, the result of deliberate human intervention, compact, and choice. Third, in classical theory, the common good of political society is prominent; in modern theory, the good or rather the rights of individuals are prominent. Fourth, in classical theory the government and citizens shared the same goal, which is happiness, understood in the same way by both, but in modern theory the government has a different and limited goal, involving typically the negative aim of defense against attacks (either from without or from within, to keep on citizen attacking another). Fifth and finally, in classical theory the law is regarded as pertaining in principle to any matter of good or bad, right or wrong, but in modern theory the law is held to be competent to deal only with matters in which citizens in some uncontroversial way harm one another.

So that there has been a modern turn is clear, and my concern here is with John Locke’s contribution to it. Commentators often take that contribution to be contained in Locke’s celebrated doctrine of natural rights. It is thought that Locke, with his introduction of natural rights, produced a political theory which is either incoherent on classical grounds or incompatible with classical political thought. In that spiritMacIntyre in After Virtue, holding forth for the classical view, famously asserted that “There are no such [human] rights, and belief in them is one with belief in witches and unicorns” (69). Leo Strauss for different reasons reached a similar view: “The premodern natural law doctrines taught the duties of man; if they paid any attention at all to rights, they conceived of them as essentially derivative from his duties.”

Locke himself seems to makes a transition from natural law to natural rights, since as a young man he delivered a series of lectures in Oxford defending the natural law strenuously, especially against Hobbes, and then two decades later he wrote what is generally regarded as the primary foundational text in the modern philosophy of natural rights. So we may wonder, what is involved in Locke’s apparent change from emphasizing natural law to emphasizing natural rights?

We shall see that Locke’s contribution to the modern turn, however, has nothing to do with his emphasis on natural rights per se, as indeed his main notion of natural right depends upon natural law and is incoherent without it. Rather his contribution consists in his assigning originally to individuals the kind of power and authority which in classical accounts could meaningfully be attributed only to those responsible for the common good. This power and authority Locke calls a “right”, and it is only a right in that sense which is incompatible with classical accounts and constitutes Locke’s distinctive contribution to the modern turn.

Two Notions of Natural Right Compatible with Natural Law

Let us begin by distinguishingtwo senses of the word “right” when we speak of someone’s having or possessing a “right.” In both senses rights are compatible with laws; indeed, in the first sense the notion of right depends upon the notion of law.

First, we may understand by“a right”simply a power, that is, an authorityto act, as conferred by the relevant law. Laws either forbid, command, or permit. Sometimes permission takes the form of authorization, where someone is permitted to act according to his discretion to achieve some purpose intended by the law. This authorization may be referred to as a powerto act which that person holds “by right of” that law. We may therefore say simply that he has the “right” to act in a certain matter according to his discretion. In that case our use of the word “right” is simply an abbreviation for “power to act in that way by right of that law.” The appeal to a “right” like that is obviously not at odds with an appeal to law, since a right is a power assigned by a law; to appeal to a right is to assert a title which is underwritten by a law.

This meaning of the word “right” is very old and goes back to the Roman law of inheritance and before that. Actually, it is a commonsense notion that persons are given authority to act by law, which may be called a “power”, a “power by right”, or simply a “right.” For example, St. Paul writing in 55 AD claims a power and they justifies his title to that power by reference to a law: “Have we not power to eat and drink?... Have we not power to carry about a woman, a sister, as well as the rest of the apostles? ... Speak I these things according to man? Or doth not the law also say these things? For it is written in the law of Moses: Thou shalt not muzzle the mouth of the ox that treadeth out the corn” (1 Cor 9:4-9). He might just as well said, “Have we not a right to eat and drink?”

If we wish, we can speak of rights in this sense as being different in kind, if the laws by which they are underwritten differ in kind. For instance, in the United States, we could say if we wished that someone empowered to act in a certain way by Federal law had a “Federal right” to act as he did, and someone empowered to act by international law had an “international right.” Similarly, if we believed that there was a natural law and that it empowered persons to act in certain ways, then we could say that those persons had a “natural right” to act as they did. On this way of speaking, again, far from “natural right” being some kind of odd notion incompatible with natural law, it would actually be completely a creature of natural law, since someone’s claim to possess an authority “by right of” the natural law would make no sense if there were no natural law.

Note that when an authorization is conferred by a law, it is conferred to certain persons for certain kinds of actions for certain ends. Thus police officers (certain persons) are authorized to stop vehicles and issue tickets for violations of the traffic code (certain kinds of actions)—but only in order to keep the public peace (certain ends), since he would be acting improperly if it was found that he gave tickets only to get revenge on his personal enemies. An authorization is a kind of trust, to use the authority for the purposes of the law, which somehow involves the common good.

The second sense of “right” I wish to consider has reference to what is due a thing. Suppose that certain kinds of treatment are due or not to certain kinds of things; then to treat them in the way that is due, and to refrain from treating them in manners never due, would be “right treatment” of them. We might accordingly say that they have a “right” to the first kind of treatment and a “right” not to be treated in the second way, which would, again, simply be an abbreviated way of saying that the first sort of treatment was always right, as always due, and the second never right, as never due. Now ways of treating things may be due to them or not in virtue of either their natural kind, or their conventional kind. (Human beings and dogs are natural kinds; police officers and ambassadors are conventional kinds.) Thus, when some treatment is always or never due to a thing in virtue of its natural kind, then, in this second sense of “right”, we may say that that kind of thing has a “natural right” to be treated always in the one way and never in the other. So then, obviously, a “right” in this second sense, too, is compatible with law, because laws generally ought to be framed which prescribe right treatment and proscribe wrong treatment. Then natural rights, too, in this second sense, are compatible with natural law, since it would be an intelligible position, at least, to say that the natural law prescribes that we treat one another in ways always due and proscribes our treating one another in ways never due. Natural rights in this second sense are compatible with natural law since they conceivably might serve as the basis and ground of a natural law.

Now natural rights in the first sense are perhaps the most important for Locke’s purposes, but natural rights like that are neither original with Locke nor part of the modern turn. In the Two Treatises, recall, Locke wishes to refute Robert Filmer’sPatriarchia, which promotes the divine right of kings to rule with absolute rule. What is Locke’s strategy? Locke assumes, following Calvin, that all power descends from and on loan from God. . Calvin in book I of his Institutes writes: “how can the idea of God enter your mind without instantly giving rise to the thought, that since you are his workmanship, you are bound, by the very right of creation (creationisiure), to submit to his authority?” Locke similarly states in his Essays on the Law of Nature that the obligation of law can be imposed only by someone who has “right and power” over us (qui in nos jus et potestatemhabet), that is, by someone who possesses power “by that right which a creator has over his own creation” (a jure illo quod creator habet in creaturamsuam). “God has created us out of nothing,” Locke states, “and, if He pleases, will reduce us again to nothing; we are, therefore, subject to Him by the highest right and highest necessity (summoiureet summa necessitate)”. Since only the Creator has power, every other alleged authority can have power rightly only by donation. “The reason why we ought to be subject to magistrates is, because they are constituted by God’s ordination,” Calvin wrote. “God is the highest power, the power of powers, from Him is derived all power”, wrote John Ponet, bishop of Rochester, whose 1556 Short Treatise on Political Power was an early prototype of Locke’s Second Treatise. Locke similarly states in his Essays that “Every obligation is traceable ultimately back to God” (in Deum enim ultimo resolvituromnis obligation). This donation of power Locke typically refers to with the verb mutuor, meaning “to borrow, to take out a loan”, in order to express the relationship between the authority of a subordinate power and the authority of God.

But God manifests his will to share power through either divine law or natural law. A consequence is that any claim to power must be traced back to God, either through the intermediary authority of the law of nature, or directly through some revelation of God’s will: “Of itself and by its intrinsic force (per se et vi sua) and only so is the divine will binding,” Locke teaches, “and either it can be known by the light of nature, in which case it is that law of nature which we are discussing; or it is revealed by God-inspired men or in some other manner, in which case it is the positive divine law” (187). This explains the challenge which presents to Filmer, Locke twenty years later, in the First Treatise: “Till our author hath resolved all the doubts that may arise about the next heir, and shewed that they are plainly determined by the law of nature, or the revealed law of God, all his suppositions of a monarchical, absolute, supreme, paternal power in Adam, and the descent of that power to his heirs, would not be of the least use to establish the authority, or make out the title, of any one prince now on earth”. Thus Locke argues that kings have no absolute power by right of divine law in the First Treatise, and that Kings have no absolute power by right of the natural law in Second Treatise.

Thus, the First Treatise looks at Scripture, and that is why it is concerned mainly with Scriptural interpretation and exegesis, whereas the Second Treatise looks at natural law. In the First Treatise, Locke’s arguments are along the lines of: a grant of authority over the earth and beasts, such as was given to Adam, was not a grant of political power, not a grant to rule over other human beings generally; both father and mother have authority by scripture (“honor your mother and your father”), and so patriarchal rule is essentially limited and cannot be the basis of absolute power; or, again, even on the assumption that God granted political power to Adam and that it was passed down by heredity, we have no way of knowing now who are the rightful heirs of Adam. Thus, Locke concludes through the arguments of the First Treatise, the purported absolute power of a monarch cannot get its justification from its being derived from whatever power was granted to Adam. (Locke seems willing to concede in First Treatise that if someone by divine law were marked out for rule, then indeed he would have power to rule, just as David was picked out by the prophet Samuel.) In the Second Treatise, Locke argues in a complementary way, that neither can the divine right of kings can be derived from the natural law.

However, as mentioned, a right in this first sense as a power granted by law is, as Locke himself shows, compatible with the natural law tradition and, moreover, not itself modern. Indeed, its source seems to have been Roman law of title and inheritance. The notion is so intuitive that it can doubtfully be claimed by any particular tradition of law; Luther asks about the Catholic hierarchy, “Christ institutes the very opposite. He takes both the right and the power to judge teaching from the bishops, scholars, and councils and gives them to everyone and to all Christians equally when he says, ‘My sheep know my voice.’”(Das eynChristlicheversamlung odder gemeyne: rechtunmachthabe: alleleretzuurteylen und lererzoberuffen, eyn und abzusetzen, Grund und ursachauserschrifft, 1523).

A claim of natural right in this sense is inherently procedural and legalistic, for two reasons. First, the claim of a “natural right” in this sense cannot be supported by appeal to the characteristics of the claimed holder of that right, because, unless such characteristics are mentioned in the law as the condition for the assignment of the power, they are simply irrelevant. Compare for instance the claim that someone’s title to a house is legally defective. That he has taken good care of the house, is a decent person, or has lived there a long time, would all be irrelevant to establishing his title. In fact it is a known peculiarity of law that it can seem to prefer and grant authority to those who “on the merits” seem singularly unfit for it. A good example is provided by inheritance, which is a central notion examined in Locke’s First Treatise, since Locke is there concerned to refute Filmer’s claim that by divine law a power originally granted to Adam was somehow conveyed to certain of his heirs through the relationship of paternity: right by inheritance, notoriously, is often at odds with what might seem right by desert. In contrast, of course, a claim of right under the contemplative or pragmatic conceptions is supported by appeal to something true of the alleged right holder.

Second, since “natural right” in the sense we are considering means “power held by right of the natural law,” it is entirely a creature of law. Hence, if the natural law were taken away, there would simply be no natural right, in this sense. To suppose that there were, would be like supposing that someone could hold a title or deed in isolation from any jurisdiction. A title is derivative and merely declares the possibility of substantiating that title through research into the law. It can make no claim, and it has no power or worth, apart from the law.

The second sense of natural right, as referring to right treatment due by nature, plays no significant role in Locke’s political philosophy; although, it is understandable that one might want to claim that it does, given what Locke says about equality and our being the “workmanship” of God, in a couple of passages in chapter 2 of the Second Treatise, such as the following: “men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's.” The worksmanship consideration can clearly play no such role, because every created thing is the workmanship of God; I may destroy a brute animal for my purposes, although the workmanship of God, then why not a man? Locke give no account based on human dignity or human beings as made in the image of God, and what can be the substance of saying that a man is “about God’s business”, if nothing at all is said about what that business can be? Rather, all the work is done by the notion of equality: it is because each man is equal to every other, that none can treat another as subordinate to his own interests. But what makes us equal, and how are we so? Locke never explains; he only asserts that “creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection”. This seems true enough, except we do not have the same faculties and same capacities to use the advantages of nature, and it is unclear why the subordination of children to parents or the natural authority of old over young does not show that we are not all of the same rank. Locke says nothing more along these lines than what I have quoted; he does not discuss what it is about human nature which makes equal treatment due.