A History of Western Philosophy

by Bertrand Russell

  “A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than 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; unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

  “But though this [the state of nature] be a state of liberty, yet it is not a state of licence: though man in that state has an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions”* (for we are all God’s property).†

  It presently appears, however, that, where most men are in the state of nature, there may nevertheless be some men who do not live according to the law of nature, and that the law of nature provides, up to a point, what may be done to resist such criminals. In a state of nature, we are told, every man can defend himself and what is his. “Who so sheddeth man’s blood, by man shall his blood be shed” is part of the law of nature. I may even kill a thief while he is engaged in stealing my property, and this right survives the institution of government, although, where there is government, if the thief gets away I must renounce private vengeance and resort to the law.

  The great objection to the state of nature is that, while it persists, every man is the judge in his own cause, since he must rely upon himself for the defence of his rights. For this evil, government is the remedy, but this is not a natural remedy. The state of nature, according to Locke, was evaded by a compact to create a government. Not any compact ends the state of nature, but only that of making one body politic. The various governments of independent States are now in a state of nature towards each other.

  The state of nature, we are told in a passage presumably directed against Hobbes, is not the same as a state of war, but more nearly its opposite. After explaining the right to kill a thief, on the ground that the thief may be deemed to be making war upon me, Locke says:

  “And here we have the plain ‘difference between the state of nature and the state of war,’ which, however some men have confounded, are as 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.”

  Perhaps the law of nature must be regarded as having a wider scope than the state of nature, since the former deals with thieves and murderers, while in the latter there are no such malefactors. This, at least, suggests a way out of an apparent inconsistency in Locke, consisting in his sometimes representing the state of nature as one where every one is virtuous, and at other times discussing what may rightly be done in a state of nature to resist the aggressions of wicked men.

  Some parts of Locke’s natural law are surprising. For example, he says that captives in a just war are slaves by the law of nature. He says also that by nature every man has a right to punish attacks on himself or his property, even by death. He makes no qualification, so that if I catch a person engaged in petty pilfering I have, apparently, by the law of nature, a right to shoot him.

  Property is very prominent in Locked political philosophy, and is, according to him, the chief reason for the institution of civil government:

  “The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of nature there are many things wanting.”

  The whole of this theory of the state of nature and natural law is in one sense clear but in another very puzzling. It is clear what Locke thought, but it is not clear how he can have thought it. Locke’s ethic, as we saw, is utilitarian, but in his consideration of “rights” he does not bring in utilitarian considerations. Something of this pervades the whole philosophy of law as taught by lawyers. Legal rights can be defined: broadly speaking, a man has a legal right when he can appeal to the law to safeguard him against injury. A man has in general a legal right to his property, but if he has (say) an illicit store of cocaine, he has no legal remedy against a man who steals it. But the lawgiver has to decide what legal rights to create, and falls back naturally on the conception of “natural” rights, as those which the law should secure.

  I am attempting to go as far as is possible towards stating something like Locke’s theory in untheological terms. If it is assumed that ethics, and the classification of acts as “right” and “wrong,” is logically prior to actual law, it becomes possible to restate the theory in terms not involving mythical history. To arrive at the law of nature, we may put the question in this way: in the absence of law and government, what classes of acts by A against B justify B in retaliating against A, and what sort of retaliation is justified in different cases? It is generally held that no man can be blamed for defending himself against a murderous assault, even, if necessary, to the extent of killing the assailant. He may equally defend his wife and children, or, indeed, any member of the general public. In such cases, the existence of the law against murder becomes irrelevant, if, as may easily happen, the man assaulted would be dead before the aid of the police could be invoked; we have, therefore, to fall back on “natural” right. A man also has a right to defend his property, though opinions differ as to the amount of injury he may justly inflict upon a thief.

  In the relations between States, as Locke points out, “natural” law is relevant. In what circumstances is war justified? So long as no international government exists, the answer to this question is purely ethical, not legal; it must be answered in the same way as it would be for an individual in a state of anarchy.

  Legal theory will be based upon the view that the “rights” of individuals should be protected by the State. That is to say, when a man suffers the kind of injury which would justify retaliation according to the principles of natural law, positive law should enact that the retaliation shall be done by the State. If you see a man making a murderous assault upon your brother, you have a right to kill him, if you cannot otherwise save your brother. In a state of nature—so, at least. Locke holds—if a man has succeeded in killing your brother, you have a right to kill him. But where law exists, you lose this right, which is taken over by the State. And if you kill in self-defence or in defence of another, you will have to prove to a law-court that this was the reason for the killing.

  We may then identify “natural Jaw” with moral rules in so far as they are independent of positive legal enactments. There must be such rules if there is to be any distinction between good and bad laws. For Locke, the matter is simple, since moral rules have been laid down by God, and are to be found in the Bible. When this theological basis is removed, the matter becomes more difficult. But so long as it is held that there is an ethical distinction between right actions and wrong ones, we can say: Natural law decides what actions would be ethically right, and what wrong, in a community that had no government; and positive law ought to be, as far as possible, guided and inspired by natural law.

  In its absolute form, the doctrine that an individual has certain inalienable rights is incompatible with utilitarianism, i.e., with the doctrine that right acts are those that do most to promote the general happiness. But in order that a doctrine may be a suitable basis for law, it is not necessary that it should be true in every possible case, but only that it should be true in an overwhelming majority of cases. We can all imagine cases in which murder would be justifiable, but they are rare, and do not afford an argument against the illegality of murder. Similar
ly it may be—I am not saying that it is—desirable, from a utilitarian point of view, to reserve to each individual a certain sphere of personal liberty. If so, the doctrine of the Rights of Man will be a suitable basis for the appropriate laws, even though these rights be subject to exceptions. A utilitarian will have to examine the doctrine, considered as a basis for laws, from the point of view of its practical effects; he cannot condemn it ab initio as contrary to his own ethic.

  C. THE SOCIAL CONTRACT

  In the political speculation of the seventeenth century, there were two main types of theory as to the origin of government. Of one type we have had an example in Sir Robert Filmer: this type maintained that God had bestowed power on certain persons, and that these persons, or their heirs, constituted the legitimate government, rebellion against which is not only treason, but impiety. This view was sanctioned by sentiments of immemorial antiquity: in almost all early civilizations, the king is a sacred person. Kings, naturally, considered it an admirable theory. Aristocracies had motives for supporting it and motives for opposing it. In its favour was the fact that it emphasized the hereditary principle, and that it gave august support to resistance against the upstart merchant class. Where the middle class was more feared or hated by the aristocracy than the king was, these motives prevailed. Where the contrary was the case, and especially where the aristocracy had a chance of obtaining supreme power itself, it tended to oppose the king, and therefore to reject theories of divine right.

  The other main type of theory—of which Locke is a representative—maintained that civil government is the result of a contract, and is an affair purely of this world, not something established by divine authority. Some writers regarded the social contract as a historical fact, others as a legal fiction; the important matter, for all of them, was to find a terrestrial origin for governmental authority. In fact, they could not think of any alternative to divine right except the supposed contract. It was felt by all except rebels that some reason must be found for obeying governments, and it was not thought sufficient to say that for most people the authority of government is convenient. Government must, in some sense, have a right to exact obedience, and the right conferred by a contract seemed the only alternative to a divine command. Consequently the doctrine that government was instituted by a contract was popular with practically all opponents of divine right of kings. There is a hint of this theory in Thomas Aquinas, but the first serious development of it is to be found in Grotius.

  The contract doctrine was capable of taking forms which justified tyranny. Hobbes, for example, held that there was a contract among the citizens to hand over all power to the chosen sovereign, but the sovereign was not a party to the contract, and therefore necessarily acquired unlimited authority. This theory, at first, might have justified Cromwell’s totalitarian State; after the Restoration, it justified Charles II. In Locke’s form of the doctrine, however, the government is a party to the contract, and can be justly resisted if it fails to fulfil its part of the bargain. Locke’s doctrine is, in essence, more or less democratic, but the democratic element is limited by the view (implied rather than expressed) that those who have no property are not to be reckoned as citizens.

  Let us now see just what Locke has to say on our present topic.

  There is first a definition of political power:

  “Political power I take to be the right of making laws, with penalty of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and in the defence of the commonwealth from foreign injury, and all this only for the public good.”

  Government, we are told, is a remedy for the inconveniences that arise, in the state of nature, from the fact that, in that state, every man is the judge in his own cause. But where the monarch is a party to the dispute, this is no remedy, since the monarch is both judge and plaintiff. These considerations lead to the view that governments should not be absolute, and that the judiciary should be independent of the executive. Such arguments had an important future both in England and in America, but for the moment we are not concerned with them.

  By nature, Locke says, every man has the right to punish attacks on himself or his property, even by death. There is political society there, and there only, where men have surrendered this right to the community or to the law.

  Absolute monarchy is not a form of civil government, because there is no neutral authority to decide disputes between the monarch and a subject; in fact the monarch, in relation to his subjects, is still in a state of nature. It is useless to hope that being a king will make a naturally violent man virtuous.

  “He that would have been insolent and injurious in the woods of America would not probably be much better in a throne, where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it.”

  Absolute monarchy is as if men protected themselves against polecats and foxes, “but are content, nay think it safety, to be devoured by lions.”

  Civil society involves the rule of the majority, unless it is agreed that a greater number shall be required. (As, for example, in the United States, for a change in the Constitution or the ratification of a treaty.) This sounds democratic, but it must be remembered that Locke assumes the exclusion of women and the poor from the rights of citizenship.

  “The beginning of politic society depends upon the consent of the individuals to join into and make one society.” It is argued—somewhat half-heartedly—that such consent must, at some time, have actually taken place, though it is admitted that the origin of government antedates history everywhere except among the Jews.

  The civil compact which institutes government binds only those who made it; the son must consent afresh to a compact made by his father. (It is clear how this follows from Locke’s principles, but it is not very realistic. A young American who, on attaining the age of twenty-one, announces “I refuse to be bound by the contract which inaugurated the United States” will find himself in difficulties.)

  The power of the government by contract, we are told, never extends beyond the common good. A moment ago I quoted a sentence as to the powers of government, ending “and all this only for the public good.” It seems not to have occurred to Locke to ask who was to be the judge of the common good. Obviously if the government is the judge it will always decide in its own favour. Presumably Locke would say that the majority of the citizens is to be the judge, But many questions have to be decided too quickly for it to be possible to ascertain the opinion of the electorate; of these peace and war are perhaps the most important. The only remedy in such cases is to allow to public opinion or its representatives some power—such as impeachment—of subsequently punishing executive officers for acts that are found to have been unpopular. But often this is a very inadequate remedy.

  I quoted previously a sentence which I must now quote again:

  “The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property.”

  Consistently with this doctrine Locke declares that:

  “The supreme power cannot take from any man any part of his property without his own consent.”

  Still more surprising is the statement that, although military commanders have power of life and death over their soldiers, they have no power of taking money. (It follows that, in any army, it would be wrong to punish minor breaches of discipline by fines, but permissible to punish them by bodily injury, such as flogging. This shows the absurd lengths to which Locke is driven by his worship of property.)

  The question of taxation might be supposed to raise difficulties for Locke, but he perceives none. The expense of government, he says, must be borne by the citizens, but with their consent, i.e., with that of the majority. But why, one asks, should the consent of the majority suffice? Every man’s consent, we were told, is necess
ary to justify the government in taking any part of his property. I suppose his tacit consent to taxation in accordance with majority decision is presumed to be involved in his citizenship, which, in turn, is presumed to be voluntary. All this is, of course, sometimes quite contrary to the facts. Most men have no effective liberty of choice as to the State to which they shall belong, and very few have liberty, nowadays, to belong to no State. Suppose, for example, you are a pacifist, and disapprove of war. Wherever you live, the government will take some of your property for warlike purposes. With what justice can you be compelled to submit to this? I can imagine many answers, but I do not think any of them are consistent with Locke’s principles. He thrusts in the maxim of majority rule without adequate consideration, and offers no transition to it from his individualistic premisses, except the mythical social contract.

  The social contract, in the sense required, is mythical even when, at some former period, there actually was a contract creating the government in question. The United States is a case in point. At the time when the Constitution was adopted, men had liberty of choice. Even then, many voted against it, and were therefore not parties to the contract. They could, of course, have left the country, and by remaining were deemed to have become bound by a contract to which they had not assented. But in practice it is usually difficult to leave one’s country. And in the case of men born after the adoption of the Constitution their consent is even more shadowy.

  The question of the rights of the individual as against the government is a very difficult one. It is too readily assumed by democrats that, when the government represents the majority, it has a right to coerce the minority. Up to a point, this must be true, since coercion is of the essence of government. But the divine right of majorities, if pressed too far, may become almost as tyrannical as the divine right of kings. Locke says little on this subject in his Essays on Government, but considers it at some length in his Letters on Toleration, where he argues that no believer in God should be penalized on account of his religious opinions.