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CHAPTER ONE
Locke on Natural Rights and the Natural Law
It is fitting to begin our task with an interpretation of John Lockeâs writings, since Locke in many ways uniquely bestrides the medieval and modern eras, including crucial features of both intellectual periods in his thought. According to the assessment of Brian Tierney, for example, Locke was simultaneously âan important influence in the formation of modern liberal ideas, including ideas concerning rights,â and also a traditional medieval natural law theorist in the mold of Saint Thomas Aquinas or Richard Hooker.1 Influential and persuasive interpretations placing Locke firmly on either side of the medieval-modern transition abound. For Strauss and Macpherson, Locke clearly stands on the âmodernâ side of this transition along with Hobbes; for Dunn, Tierney and many others Locke stands just as clearly on the âmedievalâ side along with Hooker and Aquinas.2
This persistent disagreement is indicative of the particular difficulty of intellectual history in comparison to ordinary historyâthe task of determining the chronology of events is a much more straightforward one than that of determining the chronology of ideas, since events generally exist in a discrete and readily distinguishable form while ideas do not. Persons and events are concrete; ideas are abstract. Any attempt to clearly describe or locate this medieval-modern transition, as well as to place Locke with respect to it, is thus bound to embroil one in a series of overlapping intellectual historical debates, including especially the one already surveyed between continuity-compatibility positions and discontinuity-incompatibility ones. It is, nevertheless, necessary to hazard an overview of the immediate intellectual historical context of thinking about the natural law and natural rights from which Locke emerges in order to fully appreciate the potential fruitfulness of Lockeâs own doctrine in blazing a new discontinuity-compatibility path of inquiry concerning the relationship between natural rights and the natural law.3
Lockeâs doctrine of natural rights and the natural law may indeed be viewed as the tip of an intellectual iceberg that stretches from Locke back to Francisco Suarez and the Spanish Thomists of the sixteenth century, including intermediate thinkers such as Pufendorf, Hobbes, Grotius and Hooker, among others. In the years, decades and centuries preceding Lockeâs writings, the concepts of right (ius), law (lex) and property ownership (dominium) gradually developed in a manner that helped to prepare the ground for Lockeâs own understanding. Along with this gradual conceptual development that connects Locke to a tradition extending ultimately to the twelfth-century jurists, Hobbesâs radical outlying departure from this tradition simultaneously separates Locke from it. In terms of his intellectual historical context, then, Lockeâs own doctrine of natural rights and the natural law may most profitably be seen as the complex and novel product of constructive innovations by fundamentally traditional thinkers and the destructive rejection of the tradition by Hobbes. Pufendorf, Grotius, Hooker and Suarez trace a continuous pathway, however circuitous at points, between Lockeâs doctrine and the medievals; Hobbes, on the other hand, opens the door to a radically new understanding that turns the medieval doctrine on its head.
The Spanish Thomists, including Suarez along with others such as Las Casas and Vitoria, attempted to build a concept of subjective natural rights into Aquinasâs natural law, defining ius to mean a âfacultyâ or âpowerâ inhering in a subject in a manner clearly reminiscent of later ideas of natural rights.4 They also spoke of the related concept of oneâs ownership (dominium) over oneself, again bringing to mind later ideas of individual self-ownership.5 In these ways the Spanish Thomists elaborated upon the preceding natural law tradition in a manner that pointed toward recognizably modern understandings of subjective natural rights. These innovations are, however, exceedingly modest when considered in light of the overarching similarities between the Spanish Thomists and the traditional medieval natural law doctrine. Despite the shift in focus toward the individual manifested by the relatively new significations of ius and dominium, the Spanish Thomists still conceived of this individual as existing within a thick objective context of natural law, along with the associated contexts of natural human community and Godâs supreme governance of the world. For Vitoria, for example, the phrase âI have a rightâ was simply equivalent to âit is permittedâ by natural law; the realm of subjective natural rights remained strictly circumscribed within a much more extensive and fundamental context of objective natural law.6 The Spanish Thomists merely clarified and devoted more explicit attention to the subjective implications of objective moral contexts that were already implicitly recognized by traditional natural lawyers from Aquinas to Cicero and the Stoics.
Hooker, who is now most well-known for Lockeâs quotation of his writings in the Second Treatise, occupies a place somewhat similar to the Spanish Thomists, introducing a few modest elaborations upon the traditional medieval natural law doctrine while remaining firmly within its fundamental orientation by the objective moral contexts within which the individual exists. Hookerâs minor departures from the Thomistic natural law doctrine stem largely from his post-Reformation emphasis upon an Augustinian understanding of the Fall and its consequences.7 While the traditional natural law doctrine views political society as entirely natural, following Aristotleâs assertion that human beings are âby nature political animalsâ in Book I of the Politics,8 Hooker puts an Augustinian twist on Aristotleâs developmental account of political society. While political society may be natural to human beings as they were originally created, the situation becomes complicated by the effects of the Fall: a pre-political condition of the sort Aristotle describes is not simply part of an argument for the naturalness of political society, but rather a reflection of the consequences of fallen human nature. For Hooker, it is the âdefects and imperfectionsâ of fallen human natureâand not human nature simplyâthat lead to the necessity of political society, introducing the possibility of a state of nature-like situation which Locke seizes upon and significantly extends in Chapter II of the Second Treatise.9 Despite the use to which Locke puts Hookerâs innovation upon the traditional Thomistic natural law doctrine, however, this innovation itself is a very modest one. Hooker doesnât so much depart from or alter the received natural law doctrine regarding the naturalness of political society as he reinterprets this naturalness to include a coordinate emphasis upon fallen human nature.
Grotiusâs innovations upon medieval understandings of the natural law and natural rights are more significant and transformative than Hookerâs or Suarezâs, so much so in fact that he has been singled out by some scholars as âa last, indispensable arch of the bridgeâ connecting the medieval and modern periods.10 Tierney concludes his account of the development of the modern idea of natural rights with a chapter entitled âGrotius: From Medieval to Modern,â11 Tuck sees Grotius as in many ways the single most pivotal figure in the history of natural rights theories,12 and even Zuckert, in arguing ultimately for the crucial role played by Locke, admits that Grotius âcontributed to the ultimate triumph of the natural rights philosophyâ because he âaccustomed political men to thinking about politics in terms that the natural rights philosophy would later adopt.â13
The elements of Grotiusâs thought that scholars tend to focus upon in highlighting his modern innovations upon traditional medieval thinking about natural rights and the natural law are his well-known âetiamsi,â14 his narrowing of the idea of natural law to predominantly include only respect for natural rights,15 and his inclusion of an individual power of punishment for offenses against the natural law reminiscent, in a general way, of Lockeâs later executive power of the law of nature.16 In each of these ways Grotius does indeed offer significant innovations upon the traditional framework for understanding natural rights and the natural law, innovations that distance him further from the medieval Thomistic doctrine than either Suarez or Hooker. Despite these innovations, however, Grotius does not in fact break with preceding doctrines and inaugurate a distinctively modern mode of thinking about natural rights and the natural law in the way suggested by scholars such as Tuck and Haakonssen.17 As Tierney and Zuckert effectively show, Grotiusâs innovations upon the traditional natural law remain fundamentally within the broad orientation of that tradition, with the natural law and its correlative emphasis on the naturalness of human community retaining their primacy over natural rights and the importance of the individual considered in isolation.18
In the De jure belli, for example, though Grotius does indeed include and emphasize a subjective understanding of ius, this particular understanding is derived from the traditional objective understanding in a manner parallel to that traced by the Spanish Thomists.19 Grotiusâs objective natural law remains fundamental and his subjective natural rights secondary, even if the former is narrowed to include little more than the latter. And while Grotius does espouse the idea of an individual power of punishment for offenses against the natural law, this power plays a very different and less radical role in Grotiusâs thought than it does in Lockeâs.20 Even Grotiusâs âetiamsiâ is not, carefully considered, fundamentally different from the traditional natural law doctrine of Aquinasâjust as Aquinas distinguishes the natural law from the eternal law and the divine law, rendering the natural law itself epistemologically independent of belief in the existence of God, Grotius grants âa certain placeâ to the idea of natural law even considered apart from Godâs existence.21
While Grotius thus alters the traditional natural law doctrine in ways that render it more amenable to modern concepts of natural rights, it is Hobbes who first opens the door to a genuine and distinctively modern doctrine of natural rights. Hobbes accomplishes this by entirely detaching natural rights from the idea of natural law, establishing the former as primary and the latter as derived. In perhaps the most frequently quoted passage in all of his writings, and rightfully so, Hobbes asserts that âRight [ius] consisteth in liberty to do or to forbear, whereas Law [lex] determineth and bindeth to one of them; so that law and right differ as much as obligation and liberty, which in one and the same matter are inconsistent.â22 Where Grotius, Hooker and Suarez all sought to derive a subjective concept of natural rights from the idea of natural law, or to carve out a space within the natural law for such rights,23 Hobbes begins with a subjective concept of natural rights divorced from the idea of the natural law and proceeds to build a new concept of natural law upon it. Where the preceding tradition conceived of the individual human being as necessarily existing within a thick objective context of the natural law, natural community and Godâs supreme governance of the world, Hobbes conceives of the individual as an isolated subject. Hobbesâs radical break with the preceding tradition of thinking about natural rights and the natural law is so clear that even Tierney is compelled to admit that Hobbesâs thought represents a simple âaberration.â24 Although Tuck points out some important elements of continuity between the absolutism of Hobbesâs political thought and that of some of his predecessors,25 with respect to his doctrine of natural rights and the natural law Hobbes presents a clear contrast with preceding thought. It is only with Hobbes that the possibility of conceiving of natural rights independently from the idea of natural law comes into view.
Following upon the heels of Grotiusâs significant innovations and Hobbesâs radical break, Pufendorf reflects some of the uncertainty and even confusion reigning at this transitional point in intellectual history. Like Locke, Pufendorf is difficult to place with respect to Hobbesâs modern aberration on the one hand and the innovative traditionalism of those such as Grotius on the other. Indeed, Pufendorfâs first major work was an attempt to synthesize these two strands of thought, including clear Hobbesian echoes both in his characterization of the natural law as well as in his separation of natural rights from this natural law.26 The difficulties Pufendorf encountered in this attempt are reflected in his later shift away from both Hobbesâs and Grotiusâs ideas of natural rights. Convinced that Hobbesâs natural righ...
