51. It was chiefly Rousseau who gave that cast to the doctrine of
the origin of political obligation in contract, in which it best
lends itself to the assertion of rights apart from duties on the part
of individuals, in opposition to the counter-fallacy which claims
rights for the state irrespectively of its fulfilment of its function
as securing the rights of individuals. It is probably true that
the _Contrat Social_ had great effect on the founders of American
independence, an effect which appears in the terms of the Declaration
of Independence and in preambles to the constitutions of some of the
original American states. But the essential ideas of Rousseau are
to be found in Locke's _Treatise of Civil Government_, which was
probably well known in America for half a century before Rousseau was
heard of. [1] Locke again constantly appeals to Hooker's first book
on _Ecclesiastical Polity_,[2] and Grotius[3] argues in exactly the
same strain.
Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their
application of the same conception; viz. that men live first in a
state of nature, subject to a law of nature, also called the law of
reason; that in this state they are in some sense free and equal;
that 'finding many inconveniences' in it they covenant with each
other to establish a government--a covenant which they are bound by
the 'law of nature' to observe--and that out of this covenant the
obligation of submission to the 'powers that be' arises. Spinoza
alone takes a different line: he does not question the state of
nature or the origin of government in a combination of men who find
the state of nature 'inconvenient'; but he regards this combination
as one of powers directed to a common end, and constituting superior
force, not as a covenant which men are bound by the law of nature to
observe.
[1] Locke, _Civil Government_, chap. vii. sec. 87. 'Man, being born
with a title to perfect freedom, and an uncontrolled enjoyment of
all the rights and privileges of the law of nature, equally with any
other man or number of men in the world, hath by nature a power not
only to preserve his life, liberty, and estate against ... other men;
but to judge of and punish the breaches of that law in others....
There, and there only, is political society where every one of
the members hath quitted this natural power, resigned it up into
the hands of the community in all cases that exclude him not from
appealing for protection to the law established by it.'
[2] 'Laws human, of what kind soever, are available by consent,'
Hooker, _Eccl. Pol_. I. 10 (quoted by Locke, _l.c._ chap. xi. sec.
134). 'To be commanded we do consent, when that society, whereof we
be a part, hath at any time before consented, without revoking the
same after by the like universal agreement.' Hooker;_ ibid_.
[3] _De jure belli et pacis_, Proleg. secs. 15 and 16.
52. The common doctrine is so full of ambiguities that it readily
lends itself to opposite applications. In the first place 'state of
nature' may be understood in most different senses. The one idea
common to all the writers who suppose such a state to have preceded
that of civil society is a negative one. It was a state which was
_not_ one of political society, one in which there was no civil
government; i.e. no supreme power, exercised by a single person or
plurality of persons, which could compel obedience on the part of
all members of a society, and was recognised as entitled to do so
by them all, or by a sufficient number of them to secure general
obedience. But was it one of society at all? Was it one in which men
had no dealings with each other except in the way of one struggling
to make another serve his will and to get for himself what the other
had, or was it one in which there were ties of personal affection and
common interest, and recognised obligations, between man and man?
Evidently among those who spoke of a state of nature, there were very
various and wavering conceptions on this point. They are apt to make
an absolute opposition between the state of nature and the political
state, and to represent men as having suddenly contracted themselves
out of one into the other. Yet evidently the contract would have been
impossible unless society in a form very like that distinctively
called political had been in existence beforehand. If political
society is to be supposed to have originated in a pact at all, the
difference between it and the preceding state of nature cannot, with
any plausibility, be held to have been much more than a difference
between a society regulated by written law and officers with defined
power and one regulated by customs and tacitly recognised authority.
53. Again, it was held that in a state of nature men were 'free and
equal.' This is maintained by Hobbes as much as by the founders of
American independence. But if freedom is to be understood in the
sense in which most of these writers seem to understand it, as a
power of executing, of giving effect to, one's will, the amount
of freedom possessed in a state of nature, if that was a state of
detachment and collision between individuals, must have been very
small. Men must have been constantly thwarting each other, and (in
the absence of that 'jus in naturam,' as Spinoza calls it, which
combination gives) thwarted by powers of nature. In such a state
those only could be free, in the sense supposed, who were _not_
equal to the rest; who, in virtue of superior power, could use the
rest. But whether we suppose an even balance of weaknesses, in
subjection to the crushing forces of nature, or a dominion of few
over many by means of superior strength, in such a state of nature no
general pact would be possible. No equality in freedom is possible
except for members of a society of whom each recognises a good of
the whole which is also his own, and to which the free co-operation
of all is necessary. But if such society is supposed in the state
of nature--and otherwise the 'pact' establishing political society
would be impossible--it is already in principle the same as political
society.
54. It is not always certain whether the writers in question
considered men to be actually free and equal in the state of nature,
or only so according to the 'law of nature,' which might or might
not be observed. (Hobbes represents the freedom and equality in the
state of nature as actual, and this state as being for that reason
'bellum omnium contra omnes.') They all, however, implicitly assume
a _consciousness_ of the law of nature in the state of nature. It
is thus not a law of nature in the sense in which we commonly use
the term. It is not a law according to which the agents subject to
it act necessarily but without consciousness of the law. It is a
law of which the agent subject to it has a consciousness, but one
according to which he may or may not act; i.e. one according to which
he _ought_ to act. It is from it that the obligation to submission to
civil government, according to all these writers, is derived. But in
regard to such a law, two questions have to be asked: firstly, how
can the consciousness of obligation arise without recognition by the
individual of claims on the part of others--social claims in some
form or other--which may be opposed to his momentary inclinations?
and secondly, given a society of men capable of such a consciousness
of obligation, constituting a law according to which the members
of the society are free and equal, in what does it differ from a
political society? If these questions had been fairly considered,
it must have been seen that the distinction between a political
society and a state of nature, governed by such a law of nature, was
untenable; that a state of things out of which political society
could have arisen by compact, must have been one in which the
individual regarded himself as a member of a society which has claims
on him and on which he has claims, and that such society is already
in principle a political society. But the ambiguity attending the
conception of the law of nature prevented them from being considered.
When the writers in question spoke of a law of nature, to which men
in the state of nature were subject, they did not make it clear to
themselves that this law, as understood by them, could not exist at
all without there being some recognition or consciousness of it on
the part of those subject to it. The designation of it as 'law of
nature' or 'law of God' helped to disguise the fact that there was no
imponent of it, in the sense in which a law is imposed on individuals
by a political superior. In the absence of such an imponent, unless
it is either a uniformity in the relations of natural events or an
irresistible force--and it is not represented in either of these ways
in juristic writings--it can only mean a recognition of obligation
arising in the consciousness of the individual from his relations
to society. But this not being clearly realised, it was possible to
represent the law of nature as antecedent to the laws imposed by a
political superior, without its being observed that this implied the
antecedence of a condition of things in which the result supposed
to be obtained through the formation of political society--the
establishment, viz. of reciprocal claims to freedom and equality on
the part of members of a society--already existed.
55. In fact, the condition of society in which it could properly
be said to be governed by a law of nature, i.e. by an obligation
of which there is no imponent but the consciousness of man, an
obligation of which the breach is not punished by a political
superior, is not antecedent to political society, but one which it
gradually tends to produce. It is the radical fault of the theory
which finds the origin of political society in compact, that it has
to reverse the true process. To account for the possibility of the
compact of all with all, it has to assume a society subject to a law
of nature, prescribing the freedom and equality of all. But a society
governed by such a law as a law of nature, i.e. with no imponent
but man's consciousness, would have been one from which political
society would have been a decline, one in which there could have
been no motive to the establishment of civil government. Thus this
theory must needs be false to itself in one of two ways. Either it is
false to the conception of a law of nature, with its prescription of
freedom and equality, as governing the state of things prior to the
compact by which political society is established, only introducing
the law of nature as the ground of the obligatoriness of that
compact, but treating the state of nature as one of universal war in
which no reciprocal claims of any sort were recognised, (so Hobbes);
or just so far as it realises the conception of a society governed
by a law of nature, as equivalent to that spontaneous recognition by
each of the claims of all others, without which the covenant of all
with all is in fact unaccountable, it does away with any appearance
of necessity for the transition from the state of nature to that of
political society and tends to represent the latter as a decline from
the former. This result is seen in Rousseau; but to a great extent
Rousseau had been anticipated by Locke. The broad differences between
Locke and Hobbes in their development of the common doctrine, are
(1) that Locke denies that the state of nature is a state of war,
and (2) that Locke distinguishes the act by which political society
is established from that by which the government, legislative and
executive, is established, and is consequently able to distinguish
the dissolution of the political society from the dissolution of the
government (_Civ. Gov_. Chapter XIX. Sect. 211).
56. The 'state of nature' and the 'state of war' 'are so 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. Men living together, according to reason, without
a common superior on earth with authority to judge between them, is
properly the state of nature. But force, or a declared design of
force, upon the person of another, where there is no common superior
on earth to appeal to for relief, is the state of war' (_Civ. Gov_.
III. Sect. 19). In the state of nature, however, when the state of
war has once begun, there is not the same means of terminating it as
in civil society.
The right of war may belong to a man, 'though he be in society and
a fellow-subject,' when his person or property is in such immediate
danger that it is impossible to appeal for relief to the common
superior. 'But when the actual force is over, the state of war ceases
between those that are in society ... because there lies the remedy
of appeal for the past injury and to prevent future harm.' In the
state of nature, when the state of war has once begun, it continues
until the aggressor offers peace and reparation. The state of war,
though not proper to the state of nature, is a frequent incident of
it, and to avoid it is one great reason of men's putting themselves
into society (_ib_. Sect. 21). The state of nature is not one that is
altogether over and done with. 'All rulers of independent governments
all through the world are in a state of nature.' The members of one
state in dealing with those of another are in a state of nature,
and the law of nature alone binds them. 'For truth and keeping of
faith belongs to men as men, and not as members of society' (_Civ.
Gov_. II. Sect. 14). 'All men are naturally in that state and remain
so till by their own consents they make themselves members of some
politic society' (_ib_. Sect. 15).
57. The antithesis, as put above, between the state of nature and
the state of war, can only be maintained on the supposition that the
'law of nature' is observed in a state of nature. Locke does not
explicitly state that this is the case. If it were so, it would not
appear how the state of war should arise in the state of nature.
But he evidently thought of the state of nature as one in which men
recognised the law of nature, though without fully observing it. He
quotes with approval from Hooker language which implies that not only
is the state of nature a state of equality, but that in it there is
such consciousness of equality with each other on the part of men
that they recognise the principle 'do as you would be done by' (_Civ.
Gov_. II. Sect. 5). With Hobbes, in the supposed state of nature the
'law of nature' is emphatically _not_ observed, and hence it is a
state of war. As has been pointed out above, a 'law of nature' in the
sense in which these writers use the term, as a law which obliges but
yet has no imponent in the shape of a sovereign power, is, as Locke
says (Sect. 136), 'nowhere to be found but in the minds of men'; it
can only have its being in the consciousness of those subject to it.
If therefore we are to suppose a state of nature in which such a law
of nature exists, it is more consistent to conceive it in Locke's
way than in that of Hobbes; more consistent to conceive it as one in
which men recognise duties to each other than as a 'bellum omnium
contra omnes.'
58. As to the second point, from his own conception of what men
are in the state of nature, and of the ends for which they found
political societies, Locke derives certain necessary limitations
of what the supreme power in a commonwealth may rightfully do. The
prime business of the political society, once formed, is to establish
the legislative power. This is 'sacred and unalterable in the hands
where the community have once placed it' (_Civ. Gov_. XI. Sect. 134);
'unalterable,' that is, as we gather from the sequel, by anything
short of an act of the community which originally placed it in these
hands. But as men in a state of nature have 'no arbitrary power' over
each other (which must mean that according to the 'law of nature'
they have no such power), so they cannot transfer any such power to
the community nor it to the legislature. No legislature can have the
right to destroy, enslave, or designedly impoverish the subjects. And
as no legislature can be entitled to do anything which the individual
in the state of nature would not by the law of nature be entitled to
do, so its great business is to declare the law of nature in general
terms and administer it by known authorised judges. The state of
nature, Locke seemed to think, would have done very well, but for
the inconvenience of every man being judge in his own case of what
the law of nature requires. It is to remedy this inconvenience by
establishing (1) a settled law, received by common consent, (2) a
known and indifferent judge, (3) a power to enforce the decisions of
such a judge, that political society is formed.
Hence a legislature violates the 'trust that is put in it' by society
unless it observes the following rules: (1) it is to govern 'by
promulgated established laws,' not to be varied to suit particular
interests; (2) these laws are to be designed only for the good of
the people; (3) it must not raise taxes but by consent of the people
through themselves or their deputies; (4) it neither 'must, nor
can, transfer the power of making laws to anybody else, or place it
anywhere but where the people have' (_Civ. Gov_. XI. Sect. 142).
59. Thus 'the legislative being only a fiduciary power to act for
certain ends, there remains still in the people a supreme power
to remove or alter the legislature.' Subject to this ultimate
'sovereignty' (a term which Locke does not use) of the people, the
legislative is necessarily the supreme power, to which the executive
is subordinate. An appearance to the contrary can only arise in cases
where (as in England) the supreme executive power is held by a person
who has also a share in the legislative. Such a person may 'in a
very tolerable sense be called supreme.' It is not, however, to him
as supreme legislator (which he is not, but only a participator in
supreme legislation) but to him as supreme executor of the law that
oaths of allegiance are taken. It is only as executing the law that
he can claim obedience, his executive power being, like the power
of the legislative, 'a fiduciary trust placed in him' to enforce
obedience to law and that only (_Civ. Gov_. XIII. Sect. 151). This
distinction of the supreme power of the people from that of the
supreme executive, corresponding to a distinction between the act of
transferring individual powers to a society and the subsequent act
by which that society establishes a particular form of government,
enables Locke to distinguish what Hobbes had confounded, the
dissolution of government and the dissolution of political society.
60. He gets rid of Hobbes' notion, that because the 'covenant of all
with all,' by which a sovereignty is established, is irrevocable,
therefore the government once established is unalterable. He
conceives the original pact merely as an agreement to form a civil
society, which must indeed have a government, but not necessarily
always the same government. The pact is a transfer by individuals of
their natural rights to a society, and can only be cancelled through
the dissolution of the society by foreign conquest. The delegation
by the society of legislative and executive powers to a person or
persons is a different matter. The society always retains the right,
according to Locke, of resuming the powers thus delegated, and must
exercise the light in the event either of the legislative being
altered, (placed in different hands from those originally intended),
of a collision between its executive and legislative officers, or of
a breach between different branches of the legislature (when as in
England there are such different branches), or when legislative and
executive or either of them 'act contrary to their trust.' He thus in
effect vindicates the right of revolution, ascribing to a 'sovereign
people' the attributes which Hobbes assigned to a 'person,' single
or corporate, on which the people forming a society were supposed by
an irrevocable act to have devolved their powers. In other words,
he considered the whole civil society in all cases to have the
rights which Hobbes would only have allowed it to possess where the
government was not a monarchy or aristocracy but a democracy; i.e.
where the supreme 'person' upon which all devolve their several
'personae' is an 'assembly of all who will come together.' As such
a democracy did not then exist in Europe, any more than it does
now, except in some Swiss cantons, the practical difference between
the two views was very great. Both Locke and Hobbes wrote with a
present political object in view, Hobbes wishing to condemn the
Rebellion, Locke to justify the Revolution. For practical purposes,
Locke's doctrine is much the better; but if Hobbes' translation
of the irrevocableness of the covenant of all with all into the
illegitimacy of resistance to an established government in effect
entitles any tyrant [l] to do as he likes, on the other hand, it is
impossible upon Locke's theory to pronounce when resistance to a _de
facto_ government is legitimate or otherwise. It would be legitimate
according to him when it is an act of the 'sovereign people' (not
that Locke uses the phrase), superseding a government which has been
false to its trust. But this admitted, all sorts of questions arise
as to the means of ascertaining what is and what is not an act of the
'sovereign people.'
[1] According to Hobbes, tyranny = 'monarchy misliked'; oligarchy =
'aristocracy misliked.'
61. The rapid success of the revolution without popular disorder
prevented Locke's theory from becoming of importance, but in the
presence of such sectarian enthusiasm as existed in Hobbes' time
it would have become dangerous. It would not any more than that of
Hobbes justify resistance to 'the powers that be' on the part of any
body of men short of the civil society acting as a whole, i.e. by a
majority. The sectaries of the time of the Rebellion, in pleading
a natural or divine right to resist the orders of the government,
would have been as much condemned by Locke's theory as by that of
Hobbes. But who can say when any popular action by which established
powers, legislative or executive, are resisted or altered is an
act of the 'sovereign people,' of the civil society acting as a
whole, or no. Where government is democratic, in Hobbes' sense,
i.e. vested in an assembly of all who will come together, the act
of the 'sovereign people' is unmistakeable. It is the act of the
majority of such an assembly. But in such a case the difficulty
cannot arise. There can be no withdrawal by the sovereign people
of power from its legislative or executive representatives, since
it has no such representatives. In any other case it would seem
impossible to say whether any resistance to, or deposition of, an
established legislative or executive is the act of the majority of
the society or no Any sectary or revolutionary may plead that he has
the 'sovereign people' on his side. If he fails, it is not certain
that he has them not on his side; for it may be that, though he has
the majority of the society on his side, yet the society has allowed
the growth within it of a power which prevents it from giving effect
to its will. On the other hand, if the revolution succeeds, it is not
certain that it had the majority on its side when it began, though
the majority may have come to acquiesce in its result. In short,
on Locke's principle that any particular government derives its
authority from an act of the society, and society by a like act may
recall the authority, how can we ever be entitled to say that such an
act has been exercised?
62. It is true that there is no greater difficulty about supposing
it to be exercised in the dissolution than in the establishment of a
government, indeed not so much; but the act of first establishing a
government is thrown back into an indefinite past. It may easily be
taken for granted without further inquiry into the conditions of its
possibility. On the other hand, as the act of legitimately dissolving
a government or superseding one by another has to be imagined as
taking place in the present, the inquiry into the conditions of
its possibility cannot well be avoided. If we have once assumed
with Hobbes and Locke, that the authority of government is derived
from a covenant of all with all,--either directly or mediately by a
subsequent act in which the covenanted society delegates its powers
to a representative or representatives,--it will follow that a like
act is required to cancel it; and the difficulties of conceiving
such an act under the conditions of the present are so great, that
Hobbes' view of the irrevocableness of the original act by which
any government was established has much to say for itself. If the
authority of any government--its claim on our obedience--is held to
be derived not from an original covenant, or from any covenant, but
from the function which it serves in maintaining those conditions
of freedom which are conditions of the moral life, then no act of
the people in revocation of a prior act need be reckoned necessary
to justify its dissolution. If it ceases to serve this function,
it loses its claim on our obedience. It is a παρέκβασις. [1] (Here
again the Greek theory, deriving the authority of government not
from consent but from the end which it serves, is sounder than the
modern.) Whether or no any particular government has on this ground
lost its claim and may be rightly resisted, is a question, no doubt,
difficult for the individual to answer with certainty. In the long
run, however, it seems generally if not always to answer itself. A
government no longer serving the function described--which, it must
be remembered, is variously served according to circumstances--brings
forces into play which are fatal to it. But if it is difficult
upon this theory for the individual to ascertain, as a matter of
speculation, whether resistance to an established government is
justified or no, at any rate upon this theory such a justification of
resistance is possible. Upon Locke's theory, the condition necessary
to justify it--viz. an act of the whole people governed--is one
which, anywhere except in a Swiss canton, it would be impossible
to fulfil. For practical purposes, Locke comes to a right result
by ignoring this impossibility. Having supposed the reality of one
impossible event,--the establishment of government by compact or
by the act of a society founded on compact,--he cancels this error
in the result by supposing the possibility of another transaction
equally impossible, viz, the collective act of a people dissolving
its government.
[1] [Greek παρέκβασις (parekbasis) = a government without a proper
basis Tr]
63. It is evident from the chapter (XIX.) on the 'dissolution of
government' that he did not seriously contemplate the conditions
under which such an act could be exercised. What he was really
concerned about was to dispute 'the right divine to govern wrong'
on the part of a legislative as much as on the part of an executive
power; to maintain the principle that government is only justified
by being for the good of the people, and to point out the difference
between holding that some government is necessarily for the good of
the people, and holding that any particular government is for their
good, a difference which Hobbes had ignored. In order to do this,
starting with the supposition of an actual deed on the part of a
community establishing a government, he had to suppose a reserved
right on the part of the community by a like deed to dissolve
it. But in the only particular case in which he contemplates a
loss by the legislature of its representative character, he does
not suggest the establishment of another by an act of the whole
people. He saw that the English Parliament in his time could not
claim to be such as it could be supposed that the covenanting
community originally intended it to be. 'It often comes to pass,'
he says, 'in governments where part of the legislative consists of
representatives chosen by the people, that in tract of time this
representation becomes very unequal and disproportionate to the
reasons it was first established upon.... The bare name of a town,
of which there remains not so much as the ruins, where scarce so
much housing as a sheepcote, or more inhabitants than a shepherd is
to be found, sends as many representatives to the grand assembly of
law-makers, as a whole county, numerous in people, and powerful in
riches. This strangers stand amazed at, and everyone must confess
needs a remedy; though most think it hard to find one, because the
constitution of the legislative being the original and supreme act
of the society antecedent to all positive laws in it, and depending
wholly on the people, no inferior power can alter it. And therefore
the people, when the legislative is once constituted, having, in such
a government as we have been speaking of, no power to act as long as
the government stands, this inconvenience is thought incapable of a
remedy' (Chapter XIII. Sect. 157). The only remedy which he suggests
is not an act of the sovereign people, but an exercise of prerogative
on the part of the executive, in the way of redistributing
representation, which would be justified by 'salus populi suprema
lex.'