THE tyranny of the Church, as well as of the feudal lords, prevented the development of individual liberty during the Middle Ages, except so far as the privileged classes were concerned.
As a result of the intimate union between Church and State which had been brought about by Constantine, the temptation to employ the power which had now been placed at her disposal became too great for the Church to withstand. The Christian faith, which had hitherto spread by virtue of its inherent strength, was now extended by the employment of force. Heresy was suppressed as the worst of crimes. Freedom of thought was extinguished. The religion which had at its origin been so remarkable a factor in promoting the enfranchisement of the individual, became, during the Middle Ages, an instrument of his enslavement. There is but one qualification which must be made to this statement: the Church, though inimical to liberty, did endeavor to secure as large a degree of equality as possible, by working for the abolition of serfdom.
Not only had the influence of Christianity as a factor in the evolution of individual liberty been diminished, but the other factor in this process, namely, the individualism of the Teutonic peoples, had likewise failed to accomplish what it might have, had not the growth of feudalism weakened its force. Feudalism divided mediæval society into sharply separated classes. The individual was rated as a member of this or that caste, not as a man. While the lords enjoyed a freedom which was almost unrestrained, the serfs were bound to the soil, being deprived completely of freedom. In England the effects of feudalism were gradually obliterated. The privileged classes joined hands with the lower classes against the king. As a result of this union not only was the king’s power restricted, but liberty was extended to the common people. The process of elevating the lower classes went on without interruption in England. Magna Charta, as early as 1215, enumerated and guaranteed the liberties of the English people. Parliament, especially after the establishment of the House of Commons in 1265, acted as a check upon the royal power. Upon the Continent a different development took place. In France, the kings eventually succeeded in curbing the nobles with the assistance of the common people, especially of the cities. But only limited powers were conferred upon the municipalities, while little was done to emancipate the serfs. While the political power of the great nobles was at last broken, their feudal privileges were left almost untouched. Not until the Revolution was feudalism finally abolished in France. The French kings had succeeded in building up a despotic power. Undoubtedly they were aided in this by the victory of the Roman spirit of centralization and sovereignty over the Germanic spirit of individualism and liberty. The revival of Roman Law and the insistence of the legists upon the doctrine, “What the king wills has the force of law,”1 operated strongly as a force in building up a royal despotism. In Italy the establishment of tyrannies in the cities, which had enjoyed a brilliant, but short-lived, existence as republics, likewise rendered individual liberty nugatory. In Germany the growth of a strong central power, such as in France, did not take place. The nobles of Germany succeeded in appropriating the powers of government in their domains, and, except in case of the cities, many of which were practically republics with a free and prosperous population, the lower classes in Germany were kept in complete thraldom.
However, both the individualism of Christianity and of the German nature experienced a revival during the great religious Reformation of the sixteenth century. The great reformers aimed to return to primitive Christianity and revive its spirit. This movement was in its effects a revolution of the most far-reaching consequences. The fact that it was a product of the Germanic spirit is evinced plainly enough by its having taken hold of the Germanic peoples of northern Europe alone. These are also the nations whose inhabitants possess the widest degree of liberty to-day. Although the political consequences of the Reformation did not manifest themselves at once, although Luther, Calvin, and others preached the doctrine of passive obedience to the powers that be, and had but little sympathy for political questions or for civil liberty, the results of this movement upon the enfranchisement of the individual could not but show themselves sooner or later. For what the reformers demanded for themselves was freedom of conscience. They attacked the principle of authority. It is true they put the authority of the Bible in the place of that of the pope, but this altered the case materially. The Bible is a book that must be interpreted. Each individual is likely to form his own opinion of its teachings. Toleration must follow as a result of the principle of Protestantism. This did not result until experience demonstrated the impossibility of controlling the consciences of men. With the acknowledgment of freedom of conscience the individual is practically enfranchised. The sovereignty of the State once limited in this respect, will still further be limited by the granting of other personal rights with which the State must not interfere.
But what of the theory of Natural Law, which is the theoretical side of this process? With the advance of education the influence of theories is intensified. Natural Law furnishes the programme of the individual rights for which the people of the civilized countries of western Europe contend. To follow its development becomes, therefore, a task of great importance.
Melanchthon, the friend and helpmate of Luther, the “preceptor of Germany,” deserves the credit of having introduced the conception of Natural Law into modern thought. He said that in civil affairs he looked to Cicero rather than to the Scriptures. It is likely that he adopted his views concerning the Law of Nature from Cicero. Melanchthon divides laws into natural and positive. The former are rays of divine light in the human soul and are unchangeable, while the latter, founded upon possible, not upon necessary, grounds, are variable.1 Natural Law forms the standard of justice among men, though not sufficient to the justice of God. Since man has no perfect knowledge of it, and it does not reveal the nature of God, it is best to return to faith. It is more convenient to extract the Laws of Nature from the Decalogue, where God has announced them with perfect clearness, than to rely upon man’s reason.
Melanchthon failed to deduce positive law from Natural Law, though he asserted the priority of the latter. This was done by Oldendorp, a syndic and professor at Rostock. Oldendorp discriminates clearly between Natural Law, the law of nations, and civil law, and attempts to construct a complete system of Natural Law.1 But, like Melanchthon, he shrinks from using reason alone, and therefore falls back on the Decalogue as the clearest exposition of Natural Law.
The attempt to deduce Natural Law methodically from human nature, without recurring to the Scriptures, was first made by Hemming, a professor at Copenhagen.2 Winkler, a professor at Leipzig, likewise wrote an extensive treatise on Natural Law.3
Albericus Gentilis, professor of Law at Oxford University, wrote a treatise On the Right of War,4 which in many respects anticipated the celebrated book of Grotius. Grotius had a great admiration for Gentilis, and repeatedly acknowledged his indebtedness to him. Gentilis regards the Law of Nature as being concealed in the recesses of nature and as forming a part of divine law. Though darkened in many particulars, it may nevertheless become known to man. According to Gentilis, Natural Law is discovered spontaneously and is more powerful than any other law. It is an instinct of Nature and immutable. All men, he maintained, are members of the same world and related to each other. Nature made men sociable and implanted in them a mutual love for each other. By nature there is no war. An eternal law, born with man, induces him to defend himself and what belongs to him.1
In 1594 appeared the first four books of Hooker’s Ecclesiastical Polity, the first of which contains his exposition of Natural Law. Hooker defines a law in general as a rule to goodness of operation. There are various kinds of laws: the divine law which God has set down to follow in His works; the law of natural agents that work either by simple necessity or of their own accord; the law which the angels obey; the law guiding voluntary agents, dictated by reason; the positive laws for multitudes and political societies; the laws of each nation ; those concerning the fellowship of them all, and finally the law which God has revealed.2 The Law of Nature is the law which men have by natural reason discovered as a guide in their actions. Its principles are, and always have been, known to all men without divine revelation. Every person may not be able to formulate each particular law of Nature, but when once proposed he will recognize it as such. Natural Laws are eternal. What all men have at all times believed Nature herself must have taught. Nature’s voice is God’s instrument. The general and perpetual voice of men is the sentence of God Himself. The general persuasion of mankind is therefore the proof of right. Having a natural knowledge of the Laws of Nature men consider themselves as having originated these laws, but they have only discovered them.1 From these self-evident principles the moral duties we owe to God and man can be deduced without great difficulty. The Laws of Nature bind men absolutely, as men, even though they have no settled fellowship nor have ever agreed as to what to do and not what not to do.2 The observance of the Law of Nature results in great good. So long as each thing performs the work that is natural to itself, it preserves itself and other things. Great injury must inevitably result, if man, the noblest creature in the world, yes, himself a world, transgresses the Law of Nature.3 Natural Laws are either mandatory, showing what must be done; permissory, declaring what may be done ; or admonitory, stipulating what is most convenient to be done.4 The various mandates which Natural Reason teaches apply to our duty toward God and man. Natural Reason teaches the main precepts of religion and morality. It teaches men to love one another. The desire of man to be loved by those who are naturally his equals imposes upon each person the duty of treating others as he wishes to be treated himself. From the natural equality of men other principles of Natural Law result of which no man is ignorant, viz.: “Because we would take no harm we must do none”; “Since we would not in anything be extremely dealt with, we must avoid all extremity in our dealings”; “We are to abstain from all violence and wrong.”5
Because of the corruption of human nature, says Hooker, the Law of Nature requires some form of government. To take away all forms of public government in the world would be apparently to overthrow the whole world. While obedience to Natural Law is demanded by conscience, positive human laws constrain men by force and punish transgression. Natural Laws are valid in their very nature, while positive laws become obligatory only after public approbation has made them so.1
Hooker gave a complete exposition of Natural Law thirty-one years before Grotius, the great Dutch writer, who is by many given the credit which belongs to Melanchthon, Gentilis, and especially Hooker. The famous work of Grotius, On the Right of Peace and War, was not published until 1625.
Hooker’s Ecclesiastical Polity is one of the few really great books in the world’s literature. It contains, either explicitly or in germ, all the leading ideas of the eighteenth century.
By declaring the doctrines of religion to be founded in nature Hooker prepared the way for English deism. By stating that the principles of human conduct are likewise founded in nature he became the forerunner of the brilliant English school of writers on ethics.2 This rationalistic spirit is applied by Hooker to every line of human thought. Hooker does not rely upon tradition to prove his assertions. He does not quote the fathers or the schoolmen. He establishes his points by argument, by the use of reason. That signifies a rupture with scholasticism. It means that for the first time the principle upon which modern learning rests is used fearlessly.
It was only natural that this rationalistic spirit should be applied by Hooker to politics and law as well. Reason, not tradition, is made the test which is applied to political institutions. The laws founded in reason are the Laws of Nature.
Joined with this theory of Natural Law in Hooker’s work, we find the doctrine of the sovereign power of the community, the contract theory, the doctrine of the separation of powers, which is often supposed to have been first announced by Montesquieu, and other ideas which were subsequently put forth by Sidney, Locke, and other writers of the seventeenth and eighteenth centuries.
It was only incidentally, as it were, that Hooker had expressed his views on questions of Natural Law and politics, his chief object being to vindicate the ecclesiastical polity of England. A writer to whom these questions were of prime importance was the famous Dutch scholar Hugo Grotius, whose monumental work On the Right of Peace and War1 exerted a wonderful influence over his time, since it laid the foundations of a new science, modern international law. It is also the first complete and systematic treatise on Natural Law. Grotius was a man of the same stamp as Hooker. Though quoting extensively from ancient and mediæval authors, he employed reason in constructing his system, using tradition simply for the purpose of illustrating his arguments. It was he who first separated politics from theology. His great reputation secured a general predominance of his views. From his time on, down to the nineteenth century, almost every writer on government uses the conception of Natural Law. There was a rupture with custom and tradition. Reason was now applied to law and politics.
Grotius distinguishes between natural and voluntary laws. The latter have their origin in a will which may be human or divine. Human voluntary law is of three classes: civil law, which proceeds from the civil power ruling the commonwealth; the law of less extent, that does not issue from the civil power, though dependent upon it, and that contains the precepts of fathers, masters, and such like; finally, the law of larger extent, which is the law of nations.1 Voluntary divine law has its rise from the will of God. It was thrice given to mankind: after the creation of man, after the Flood, and in the teachings of Christ. Natural Law is the dictate of right reason showing moral turpitude or moral necessity to be in an act, by its agreeing or not agreeing with rational nature, and therefore with the precepts of the Author of nature, God. Natural Law commands or forbids what is by itself, or in its own nature, due or unlawful; while divine law makes any act lawful or unlawful simply because it is commanded or prohibited by God. Natural Law is immutable. God Himself could not change it. It would exist even if God did not exist.2
Grotius adopts the division of law into voluntary and natural from Aristotle. He quotes also the Roman jurists, Cicero, the fathers, and Aquinas. But Grotius introduces a new principle into Natural Law, namely, the social principle. He considers it to be natural for man to seek a life spent in community with his fellow men, and considers this social instinct (appetitus socialis) as the source of Natural Law.3 “This . . . concern for society in conformity with human reason is the source of that law which is properly called by such a name: to which pertains the abstinence from another’s property and restitution thereof if any person possesses anything belonging to another ; the obligation of fulfilling promises ; the reparation of injury done by our fault, and the infliction of punishment according to desert.”1 But Grotius is not consistent in the use of the social principle as the source of Natural Law. He declares Natural Law also to be the dictate of right reason. He considers reason to be the true nature of man. Man has an inclination to search for reason in all things, so also in law. Reason discerns what agrees with human nature and what does not; what is in accord with the social relations of men and what is not.
Natural Law, according to Grotius, can be proved a priori and a posteriori. The former method is more subtle, the latter more popular. The former demonstrates the agreement or disagreement of a thing with the rational and social nature of man, the latter shows what is common to all nations. A universal effect requires a universal cause. Beliefs prevailing among all nations must have a common origin.2
In opposition to Carneades and others who declared that there is no universal standard of justice and that the only test of law is its utility, Grotius maintained that there is an essential justice and morality, founded in the nature of things. He affirmed that justice and right should rule among nations and direct both peace and war.
Grotius defines the State as the perfect union of free men for the purpose of enjoying the protection of the Law and promoting the common utility.3 He does not say as explicitly as do his successors that the State is formed by compact; but inasmuch as he deduces all civil law from compact, he may well be regarded as having introduced the compact theory into modern thought. He regards private property as having arisen from compact. If any individual has acquired property or any right in a lawful manner, it is contrary to Natural Right to deprive him of it. If a ruler does so, nevertheless, he should make restitution, for he has acted contrary to the true right of the subject. Grotius treats in one of the chapters of his book1 of those things belonging to all men and distinguishes between what is ours according to the common right of men (communi hominum jure) and what belongs to us by our special right. This distinction later became that between inherent, or fundamental rights, and acquired rights, and anticipated the term “Rights of Man” of the eighteenth century.
Like all who believe in the compact theory of government, Grotius regards the State as an aggregation of individuals, not as a unit, or organism, or State in the true sense. He emphasizes the individual rather than the State. Grotius was a life-long champion of individual liberty. While the fierce religious conflict was raging in Holland between the Arminians and Gomarists, he advocated religious toleration and throughout his life endeavored to conciliate religious factions. A born republican, he believed in equality. He asserted that the life, limbs, and freedom of each individual belong to himself alone.2 He was untrue to his own principles, however, when he said that an individual might alienate his liberty and even deliver himself into slavery.3
John Selden (1584–1654), one of the most learned and celebrated jurists and antiquarians of his time, called by Grotius the “glory of England,” endeavored to prove that reason is not the source of Natural Law. According to him reason is too uncertain and inconstant and lacks sufficient authority to make the precepts of Natural Law obligatory.1 He believes in the existence of Natural Laws, however, and regards them as universal laws, the laws of the world, as God’s way, word, mandate, and footprint. He says they will always remain firm and immutable. While denying that they were originally written in the conscience of men and discoverable by reason alone, he asserts that they were supernaturally revealed to the first generation of men; namely, the Noachids, and were then spread among the Greeks, Romans, and other peoples of antiquity. These primitive laws revealed to the sons of Noah he regards as a complete and wonderful résumé of all the laws and duties of society. What makes Selden’s views still more strange is that he finds these laws in a book so little known as the Talmud. These prime Laws of Nature prohibit the worship of idols and of other gods, save the one Supreme Being; blasphemy; the spilling of human blood; cruelty to animals; and enjoin respect of marriage and the ties of blood, of property, and of justice, as well as the laws of one’s country.2
In opposition to Salmasius, a countryman of Grotius, who had written a defence of Charles I. and endeavored to prove that kings have absolute power by divine and Natural Right, John Milton affirmed that the punishment of tyrants is according to the Law of Nature, and that by the same Law the right of the people is superior to that of princes. He says that by the Law of Nature the people instituted government for the preservation of their liberty, peace, and safety. By appealing to the Law of Nature he considered things according to their nature as discovered by reason.1 Milton says “that all men were naturally born free, being the image and resemblance of God Himself.”2 In his Areopagitica Milton demands liberty of the press as the foundation of popular and personal liberty and the development of human thought. He was an ardent advocate of liberty of conscience, “which above all other things ought to be to all men dearest and most precious.”3 Individual liberty never had a more devoted champion than John Milton. He advocated the separation of Church and State. His principles were thoroughly republican. He was the forerunner of American ideas of government and personal freedom.
With Hobbes Natural Law assumes quite a different character. It becomes intimately associated with a state of nature. While Grotius believed man to be a social creature, Hobbes declared man to be naturally selfish and anti-social. He says that by nature men are equal as regards qualities of soul and body,4 and that inequality was introduced by civil law. On account of this natural equality each person hopes to obtain that which he desires. When several desire the same thing one becomes the enemy of the other and seeks to subdue or remove the other. Though all are equal, each thinks himself greater than the other and seeks to obtain preeminence.1 Each desires his own good and seeks to avoid what is harmful to him. It is a right of Nature that every man protect his life and limbs to the extent of his ability.2 This right of self-protection gives the right to employ all means necessary to attain the end desired. Nature gives the right to all things, the bodies of men not excepted. The natural state is therefore a state of war of all against all.3 So long as this state continues there is no security. The reasons for desiring peace are fear, especially of a violent death, the desire for the objects necessary to live well, and the hope of obtaining these by industry. Peace is suggested by certain articles called Natural Laws which are derived from reason. These laws are precepts by which each person is prohibited from doing that which tends to his injury. They are eternal and immutable. What they forbid can never be commanded, and what they enjoin can never be forbidden. They are one with the moral law.4 They are theorems, not the commands of a ruler. Hobbes deduces them from one another mathematically.
The first Law of Nature, says Hobbes, enjoins that peace be sought and enjoins upon each individual that he divest himself of his right to all things and content himself with the same liberty others have. Otherwise strife would continue endlessly.5 Rights are ceded by simple renunciation, or by transfer to another. Rights are transferred in return for benefits received. The transfer is mutual; it is a contract. A second Law of Nature commands that contracts must stand and faith be kept.1 Where no contract is formed there is no transfer of right, consequently there is no injustice. The observance of contracts is the essence of justice.2
Hobbes formulates about a score of what he calls Laws of Nature, all of them principles of morality or practical wisdom, such as the following: That each person should be useful to others; that no man should despise another; that in inflicting punishment the future good, rather than the magnitude of the past offence, is to be considered; that all men are by nature equal; that such things as cannot be divided should be used in common; that messengers of peace should be safe; that in every controversy decision should be made by arbiters; that each person should do unto others as he would have them do unto him.3
Hobbes considers these laws binding upon conscience, the internal judge. The violation of them is a mistake, rather than a crime. Whoever observes them is a just person.4
It is evident that these laws contain little that savors of personal liberty. The principle of equality is emphasized, but it must be remembered that equality and liberty are by no means inseparable: liberty may exist without equality, while equality may prevail in a despotism. Far from limiting the interference of the State with the liberty of the individual, the Laws of Nature, according to the view of Hobbes, recommend that the state of nature, which is a state of unrestricted freedom, be exchanged for the political State, because there exists no force which can prevent the violation of contracts and the occurrence of war in the state of nature. The State is formed by a contract, in which all individuals transfer their separate wills to a general will.1 The person or body to whom this power is transferred has supreme and absolute power.2 All have promised to obey him. He is bound to no one. Hobbes recognizes three forms of government: democracy, aristocracy, and monarchy, but regards the monarchy as the best. He constantly confuses the State with the ruler of the State. The State has unlimited control over the property, the opinions, and the religious beliefs of the citizens. It is true that Hobbes regards it as the duty of the ruler to secure the welfare of the people,3 but he alone decides wherein this welfare consists. The citizen has but to obey the law. Hobbes defines Law as the command of that person whose will is the foundation of obedience. In such a state as this there exists no sphere of individual rights. The ideas of Natural Law, a state of Nature, and of the social compact, which were employed by the forerunners, as well as most successors, of Hobbes to demonstrate the rightfulness and necessity of individual liberty, have become instruments in his hand to enslave the individual and establish the despotism of the State. What, however, could be more illogical than to suppose that men would voluntarily exchange their natural freedom for serfdom of the worst sort?
Spinoza (1632–1677), the great Dutch philosopher, was influenced by the theories of Hobbes, though differing from him in many particulars. He does not preach absolutism, as does Hobbes, but is an ardent champion of liberty of thought and expression.
Spinoza regards Natural Laws as rules of Nature determining the existence and actions of things in a specific manner.1 Thus fishes occupy the water by Natural Right. By the same right the powerful prey upon the weak. Natural Right lies in the nature of things. The right of Nature as a whole, and of each individual, extends as far as his power. From this standpoint might is right. The power of natural things, by which they exist and act, is the power of God. Every man has as great a right to Nature as he has power to hold it.2 The supreme Law of Nature is self-preservation—continuance in an appropriate condition. Whatever any person, under the empire of Nature only, deems useful, whether by reason or appetite, he desires by the supreme Law of Nature and may rightfully obtain, whether by force, cunning or entreaty, regarding him as an enemy who opposes him in the satisfaction of his desire.3 Spinoza assumes a state of Nature. In this state the forces of Nature prevail, or, as he says, might makes right. Unlike Hobbes, Spinoza is a pantheist. The distinction between good and bad does not exist for him. It is lost in the unity of the divine Nature. Things seem wrong to us because of our limited understanding, while in reality there is harmony everywhere. According to Spinoza men are by nature enemies.4 They are inclined to revenge rather than to sympathy. Since each strives after superiority conflict ensues. The victor glories rather in having harmed his opponent than in having benefited himself.1 Though all may be persuaded that such action is condemned by religion, which enjoins the love of one’s neighbor (that is, that each shall defend the right of his neighbor as if it were his own), this persuasion has but little influence over their passions. But each desires to live in peace and safety, and to be free from fear. This is impossible so long as every one does what passion dictates. To live in security men must combine, each surrendering his individual rights to the community. A compact is therefore formed which is obligatory because of its usefulness, and is null and void as soon as its promises are violated. It was made to avoid a greater evil or to attain a greater good. Rulers possess the right to rule only so long as they have the power to enforce obedience. He who is mightier than the ruler does not need to obey. Subjects must obey the commands of the chief authority, for now that has become Right which supreme authority declares to be so. But the duty to obey ceases as soon as the supreme authority has lost the power to enforce its commands.2 This conception differs materially from that of Hobbes. Its logical consequence is the right of resistance to the supreme authority. In the last instance the sovereignty is with the people. Spinoza prefers the democratic form of government. It seems to him to be the most natural form, inasmuch as it accords best with the liberty each individual possesses by nature. The abridgment of natural liberty is least and still the disadvantages of the natural state are avoided. In a democracy, as in the natural state, all men are equal. No one transfers his natural rights to another to such an extent that he has nothing at all to do or say in regard to public matters.1 The end and aim of the State Spinoza considers to be liberty.2 Individual right is never entirely abandoned to the supreme authority.3 No one can be forced to transfer to another his Natural Right or faculty of reasoning freely.4 Freedom of thought is the natural and inalienable right of all. All governments should guarantee the right to existence and to the fruits of one’s industry.5
Among Frenchmen, Montaigne, in his Essays, denies the existence of firm, perpetual, and immutable Laws of Nature, which are said to be imprinted in human nature by their own essence. He says there is not one of these Natural Laws which is not contradicted by one nation or by several and that there is nothing in which the world differs so much as in laws and customs.6
Bossuet, Archbishop of Meaux, considers all laws to be founded on the first of all laws, which is that of Nature; that is, on right, reason, and natural equity, which cannot be broken without shaking the foundations of the earth, after which nothing remains but the fall of empires.7 But with Bossuet Natural Law is of no further consequence as regards the development of individual liberty, for he tries to prove that a king has absolute power over his subjects. According to him the royal authority is holy, paternal, and absolute. Kings are gods on earth. Though the royal authority is regarded as subject to reason, there is little left to the subject of a state such as Bossuet describes but to obey and to serve.
Fénelon (1651–1717), the rival of Bossuet, and Archbishop of Cambray, defines law in general as the rule which each being ought to follow in order to act according to its nature. The most perfect law for finite wills is that of the Infinite Will, which is Natural Law. This law is common to all beings and is eternal and immutable. The Supreme Law is to love everything according to the dignity of its nature. From this flows respect and love of God; respect for, and good-will toward, all particular beings created by God; patriotism; and all other civil and political virtues. The general welfare should, according to this law, be preferred to any particular interest. Disobedience and lack of attention to it do not destroy the force and justice of Natural Law. It is not founded upon the accord of nations and legislators, but upon the immutable relations of our being with all that surrounds it.1
In Germany Samuel Pufendorf (1632–1694) attempted to harmonize the views of Grotius and Hobbes. He was the first professor of Natural Law and occupied a chair at Heidelberg specially created for him. He taught Natural Law as a science and applied to it the geometrical method which Descartes had applied to metaphysics and Spinoza to ethics. He enjoyed a great reputation in his day and deserves to be better known in our own.
Pufendorf accepts two principles as leading to the formation of the State : The social nature of man and the fear of injury. According to him the necessity and truth of Natural Law flow from the constitution of human nature, from which it can be deduced by reason. But inasmuch as it does not determine who shall command and who obey, and puts no penalties on disobedience, it is insufficient to preserve society; therefore men must determine by compact who shall prescribe positive laws and punish disobedience. Pufendorf defines law as the command of a superior to his inferiors to act in a prescribed manner. Laws should accord with reason, but must be obeyed because they are commanded, even if the reason for them be not obvious. Though founded in reason, Natural Laws presuppose the existence of God in order to have binding power. They are obligatory because of divine injunction. Like all living creatures, man strives to preserve himself. Every man is part of a greater entity. He must be concerned for the welfare of this greater whole, which is society. The Law of Nature enjoins all actions which conduce to mutual sociableness.1 The two fundamental laws of Nature are: (1) that each individual preserve his body, his members, and all belonging to him; and (2) do not disturb, but benefit, society. The obligation to cultivate social life is equally obligatory upon all.2 Every person should regard every other as equal to himself.3 He calls it absurd to believe as did Aristotle that some men are slaves by nature. According to Pufendorf all men are naturally, and antecedently to any human deed, born free. Either their own consent or some act done by them causes an abridgment of their liberty. Antecedent to any deed or compact among men, no one has power over another, but each is master over his own actions and abilities. But when men enter society this natural equality ceases and there arises an inequality between sovereign and subject. When subjects passed into a public state they made over to their common sovereign as much of the power which they before possessed as was necessary to support this new constitution.1
The work of Grotius and Pufendorf was continued by Thomasius, one of the most enlightened men of all times, an ardent and unwearied advocate of political, intellectual, and religious liberty, and one of the founders of the University of Halle. It is his merit to have separated the sciences of law and morals. He regards morals as pertaining to the inner life, which is beyond outward control. The province of law, on the other hand, he regarded as being the regulation of outward affairs. The principle of morals he declared to be virtue; that of law, justice. He distinguishes between Natural and Positive Law. Natural Laws spring from the nature of things. They are written in the heart of man by God and enjoin the performance of those actions which are in accordance with man’s rational nature. Positive laws must be published before they can be known, while Natural Laws are discovered by reason.
Thomasius regards the fundamental precept of Natural Law to be to prolong and render happy the life of men and to avoid that which renders life unhappy and hastens death.2 He considers the happiness of society impossible without that of the individual. Likewise, individual happiness is inseparable from that of society. Every individual should labor for the welfare of others as for his own. Reasonable self-love demands that reason rule over sense and that the will of the individual be subordinated to the will of all. Thomasius distinguishes three spheres of action: decency, virtue, and justice (decorum, honestum, justum). The principle of decency is: Do unto thyself what thou wouldst have others do to thee; of virtue: Do unto others what thou wouldst have others do to thee; of justice: Refrain from doing unto another that which thou wouldst not have done unto thee.1
Thomasius makes a distinction between Natural Rights, which are derived from Nature and are inherent in man (connatum jus), and acquired rights (acquisitum jus), which arise from human laws. Freedom, the common ownership of Nature’s gifts, and the right to one’s thoughts, life, and members are inherent rights, while the right to property and the exercise of authority are acquired rights.2
By separating law and ethics Thomasius established the sphere of inner life, which should be free from outward control. He regards Law as the science of compulsory duties. During his time certain principles had come to be generally accepted by jurists; such as the existence of a state of nature and the rights and duties existing in the same, the deduction of Natural Law from the nature of things by use of reason, the limitation of the province of law to compulsory duties, as against moral duties belonging to the inner life of man.1
In England, Richard Cumberland (1632–1719) attacked the materialistic theories of Hobbes. He maintained2 that just as there are fixed principles which govern the physical world, so immutable and universal laws exist which govern the moral world. These he called Natural Laws. They demand that each individual seek his own good, as well as that of society. While Hobbes asserted the selfishness of man, Cumberland maintained the benevolence of human nature (amor universalis), which he regarded as the sum of Natural Law. The common good is, according to him, the supreme law. According to right reason men are benevolent toward each other and love peace, not war, as Hobbes had affirmed. The fundamental Law of Nature is: Seek the common happiness of rational men.3 The Law of Nature is the rule impressed upon the mind by a First Cause, prescribing such action of rational agents as best promotes the general welfare and by the observance of which alone the undisturbed happiness of every individual can be procured.4
It would be difficult to name any other writer whose influence upon modern thought has been greater than that of John Locke. His influence on political thought was no less marked than that on philosophy. He popularized political theories. His doctrines spread among the masses. They became the program of the Whigs. They were the theories of the American and the French revolutions. Locke cannot be called the originator of these ideas, for they had been put forth repeatedly before his day, especially by Hooker, Grotius, and Milton. But they came to be associated with Locke’s name, and it was he who secured for them their wide acceptance.
Like several of his predecessors, Locke presupposes a state of nature, which he conceives as a state of perfect freedom and equality, in which each person is independent of every other. But this does not imply the reign of license. The state of nature is governed by the Law of Nature, which is binding upon all. “Reason, which is that law,” says Locke, “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.”1 Every one is bound to preserve himself and the rest of mankind. The life, liberty, health, limbs, and goods of another must not be interfered with. The Law of Nature wills the peace and preservation of mankind. In the natural state the execution of the Law of Nature is, according to Locke, put into the hands of every man. Transgressors of the Law of Nature may be punished in order to prevent its violation. All men are naturally in the state of nature and remain so till by their own consent they become members of political society.2 Locke distinguishes, not very successfully, however, between the state of nature and that of war. “Want of a common judge with authority,” he says, “puts all men in a state of nature; force without right upon a man’s person makes a state of war.” The man who makes war upon another is a wolf or lion, and may be killed as such.1
Against Grotius, Hobbes, and Pufendorf, Locke asserted that man could not by free consent or compact enslave himself or give to another absolute and arbitrary power over himself. This inalienability of freedom was later insisted upon by the Massachusetts patriots, Otis, and John and Samuel Adams, and by the American Bills of Rights. “No man can, by agreement,” says Locke, “pass over to another that which he hath not in himself, a power over his own life.” Preservation of property is the chief purpose of leaving the natural state and forming government. Though men are free in the state of nature, the enjoyment of their rights is uncertain, inasmuch as the Law of Nature, though plain and intelligible to all rational creatures, is not of sufficient compulsory authority. Known and indifferent judges are also lacking, as is the power to execute sentence. On joining political society men give up the power to execute the Laws of Nature. But though they give up to society their natural equality, liberty, and executive power, it is only to secure life, liberty, and property more effectively. It would be irrational to change one’s condition in order to render it worse. The power of society over its members does not extend any further than the common good requires.2
Locke asserts that the earth was originally given by God to all men in common. Every man, he says, has a property in his own person. “The labor of his body and the work of his hands, we may say, are properly his.” By labor man removes things from the state of nature and acquires property in them. As the labor belongs to each man alone, so that becomes his to which he has joined his labor.1 Each man has free disposition over his property according to his own will, within the compass of law.2 The preservation of property is, according to Locke, one of the chief ends of government. No person, not even the supreme ruler in the State, can take away from any man a portion of his property without his own consent.
It was of great importance that Locke, unlike Hobbes and afterward Rousseau, maintained that the Laws of Nature do not lose their force after men enter society. These laws do not only apply in the state of nature. Indeed, after the formation of political society, the force of these laws has increased, for now penalties are attached to breaking them. The Laws of Nature are eternal rules, forming the standard according to which legislators shall frame the positive laws of the State.3 Neither do men lose their natural freedom and equality. There is only such a sacrifice of this natural liberty made as is absolutely necessary to the formation of the State and the establishment of government. Men do not relinquish their natural freedom in order to become slaves. They seek security for their natural rights. It is this view from which the idea arises of setting forth the Rights of Man in a solemn declaration, as was done by the Americans in their Bills of Rights, and subsequently by the French in their Declaration of the Rights of Man and of the Citizen.