In the state of nature, Hobbes believed, rights cannot be enforced: instead there is a war of all against all, which can be brought to an end only by some agreement to cease fighting. This agreement is rational, to the extent that each person benefits from it. What form would such an agreement take? Surely, Hobbes argued, people would contract together to establish, first of all, a sovereign power supreme over every citizen, and capable of enforcing the law and maintaining the peace. The sovereign so established lies outside the contract which creates him, and therefore is not bound by its terms. Hence rebellion can never be sanctioned by the contract, unless the sovereign acts in such a way as to undermine the whole basis of the civil order, and so to bring the contract to an end.
John Locke’s Two Treatises of Civil Government (1689-1690) were written, like the Leviathan, in defence of political forces which were active in the England of his time. Locke wrote in defence, not of absolute monarchy, but of a constitutional settlement, such as was established in 1688, in which a compromise of social forces dictated the structure of government institutions. Locke believed that Parliamentary rule had been threatened by the Stuart court, and he followed his patron, the first Earl of Shaftesbury, into exile during the difficult years of King James II. His first treatise was a polemic against the doctrine of the divine right of kings, upon which the Stuart kings had depended for their legitimacy, and which had been vigorously defended by Sir Robert Filmer. This somewhat parochial work is irrelevant to our concerns, except in so far as it shows that the dispute which animated Locke was the very same that had animated Hobbes—the dispute over the nature and ground of legitimate government. In the second Treatise Locke gave what is perhaps the first extended account of the logic of the social contract.
Locke had a less bleak vision of the state of nature than Hobbes. Even in a state of nature, he argued, there is a law which all people recognise, and which they would uphold if their interests did not conflict with it. This law is implanted in us by reason (which is in turn the medium through which God’s will is manifest to us). This ‘law of nature’ generates the ‘natural rights’ which are commonly recognised by all rational beings, whatever the particular political constitution which might have been imposed upon them. In subscribing to the existence of these ‘rights’ Locke showed the influence of the ecclesiastical philosopher Richard Hooker (1553-1600), who in his turn had adopted and reworked the mediaeval idea of ‘natural law’ in order to endow the Church with an authority which could transcend, regulate, and also take part in the practice of government. The theory of ‘natural rights’— variously stated and defended—still has its following. It is characterised by its ‘international’ character; it specifies rights which are supposed to be independent of, and antecedent to, the rights generated by any particular political arrangement. It can therefore provide a court of appeal against the particular laws which provide a grievance to the citizen. It is for this reason that the notion of ‘human rights’ (the latest form of the theory) has seemed to provide American liberalism, which has its constitutional foundation in the philosophy of Locke, with an international creed to rival the ideals of socialism.
The question, ‘How can there be natural rights?’ appears throughout the history of philosophy in many forms and disguises, but Locke deserves credit for his clear formulation of the question and his uncompromising answer to it. It seemed to him that we are compelled by reason to acknowledge the existence of rights independently of any convention, agreement or contract which might have served to create them. To use an ancient distinction: there are rights which stem from nature and not from convention. There are, for example, natural rights to life and limb, and to the freedom which is presupposed in the exercise of choice. There is also a natural right to property, in defence of which Locke offers interesting and influential arguments. By ‘mixing’ his labour with an object, as when he cultivates a field, or transforms a raw material, a worker makes it his own. Thereby he transforms a relation of power into a relation of right. Nobody else can now make exclusive use of the object in question without denying this right. Yet the right arose quite naturally. It involved the intercession of no agreement or conventional usage which might have served as its ‘ground’. It is given to reason to see that this ‘mixing of labour’ generates ownership. A person owns the fields that he has tilled as much as he owns the parts of his body. However, as Locke recognised, rights of this kind will be open to qualification. Two people may till the same field; or I may owe the opportunity to ‘mix my labour’ with an object to you, who have already, through your own labour, placed me, or it, in the appropriate relation. Furthermore, I have the rights to the fruits of my labour only if I leave ‘enough and as good’ for others. Nevertheless, Locke thinks, such qualifications and provisos do not destroy the reality of private property as a natural right.
How persuasive is Locke’s argument? Its historical importance can hardly be denied. Not only does it give clear application to the mediaeval ideas of natural law; it also provides a vivid terminology with which to describe the essence of material property. This terminology brings the concept of abstract human labour perhaps for the first time, though, certainly not for the last, into the centre of political thinking. Moreover it implies a connection between a person’s freedom and his control over the product of his labour. This was later to occupy the attention of political philosophers of every persuasion.
Despite this historical importance, however, it is extremely difficult to accept either Locke’s exposition of the doctrine of a natural right, or the particular examples that he gives of it. Just what is it about human reason that enables it to perceive natural rights? Does Locke suppose that there are a priori laws of practical reason like the categorical imperative of Kant? Or does he suppose that there is some notion of justice which can be given a clear exposition without reference to the particular political conflicts in which it is permanently embroiled? Locke provides no answer other than a theological one. Nor does he say what it is about the ‘mixing of labour’ that enables us to pass from a mere fact of nature (that people do things) to a law of right (that people own things). All the same, there is an intuitive power in the conception which called philosophers back to it again and again.
Even if there are natural rights, it is not to be supposed that all people in a state of nature will observe them. Hence society and its institutions are necessary, and these institutions will demand forms of obedience and create forms of obligation which surpass what can be regarded as merely ‘natural’. The question therefore arises: what criterion of right and legitimacy will operate outside the realm of ‘natural law’? Locke’s answer recalls that of Hobbes. The criterion of legitimacy is mutual consent, and the resulting civil constitution is to be construed in contractual terms: it arises from an ‘original compact’. The reason for this is as follows: all social order requires the restriction in untold ways of the freedom which a rational being enjoys in a ‘state of nature’. By what title, then, can a rational being be deprived of his freedoms? The only title must be that he himself has, through whatever impression of the advantage which accrues to him, contracted not to enjoy them. In return, therefore, the civil order has a benefit which it is obliged to confer on him—the benefit for which he contracted. This benefit is difficult to describe, but we know at least that it includes a measure of security in matters of life, limb, and property, together with such other comforts of human society and material wellbeing as the efficient order of a commonwealth might bring. The ‘original compact’ is not, however, made with a sovereign power, since the existence of such a power is, conceptually speaking, the end result and not the foundation of the compact. This compact is made between free beings in a state of nature, as they mutually relinquish their freedom and join forces for the common good.
In normal cases, a contract may involve a surrender not merely of freedoms, but of rights—in exchange for rights of another kind. It is therefore open to someone to argue that the citizens of
Locke’s community have bargained away many of their rights in exchange for civil protection—perhaps even the rights to life, limb and property. Locke wished to avoid such a result—for he believed that natural rights set limits to government, thereby giving grounds for rebellion should they be violated. He argued, therefore, on grounds that are none too clear, that natural rights are inalienable: even if you seek to bargain them away, you cannot succeed, since they are not the kind of thing that can be bargained.
There is another difficulty for social contract theories of Locke’s variety. On what grounds do we infer the existence of a social contract in any given society? Certainly there is seldom, if ever, an explicit contract; and how can we infer an implicit contract in so complex a case? Locke’s answer is that a civil society, when legitimate, is made so by the ‘tacit consent’ of its citizens, a consent which could be represented, for clarity’s sake, in the form of an explicit ‘compact’ defining the rights and duties of the parties in the manner of a contract at law. Unfortunately, as Hume pointed out in an essay on the ‘Original Contract’, the metaphor begins to look precari-ous. For what is the criterion of tacit consent? Locke was prepared to say that a traveller who passes through a country tacitly consents to the civil order there prevailing—otherwise how could he be bound by its laws? This seems counter-intuitive. Even more counterintuitive, Hume argued, is the suggestion that ordinary people, born into a situation from which they lack the means to escape, have tacitly consented to all the burdens which they inherit.
Locke found less difficulty than we might in postulating a means (namely migration to a ‘vacant place’) whereby a citizen’s consent to the arrangement which surrounds him might, on becoming conscious, also be withdrawn. We now know that there are very few ‘vacant places’, and hence that there is a great problem in describing what it would be for a single citizen to withdraw his consent from the arrangement which surrounds and (if he is lucky) protects him. But then, pari passu, there must be precisely the same problem about making sense of what it is not just to live in a political order, but also to consent to it. In which case the metaphor of a social contract becomes fraught with genuine obscurity.
Locke introduced into political thought another highly influential conception, that of the separation of powers. Hobbes’s sovereign is the single autonomous fount from which all the actions of the commonwealth take their origin. His powers are legislative, military and domestic at once. Locke argued that, even if such powers are, in practice, exercised together or by a single authority, they are separable in theory, and can be both exercised and justified independently. He went further, arguing that these powers were in fact already separated— at least to some extent—in the constitution of England, and that they ought to be separated if that constitution were to command the consent of its subjects. He proposed that the powers which sometimes are, and always ought to be, so separated are the following: the legislative (involving the creation of laws), the executive (involving the execution of those laws and the business of government), and the ‘federative’ (involving the making of treaties and the waging of war).
The theory of the separation of powers is familiar from the American Constitution, which explicitly acknowledges it as one of its foundations. It was adopted and refined by the eighteenth-century political theorist Charles Baron de Montesquieu (1689-1755), in his Esprit des lois (1748), a vivid celebration of principles which he thought to be enacted in the English constitution and which he recommended as the only certain salvation for a society adapted to the complex pursuits of contemporary man. Such a society must combine the strongest possible safeguards of liberty with the greatest internal cohesion, and it was through the separation of powers, Montesquieu argued, that this could be achieved. Such a separation (in Montesquieu’s theory, between the executive, the legislative, and the judiciary) guarantees the individual liberty, by ensuring that each power can be curtailed by the others. It also ensures cohesion, through the internal relations between the powers, which make it impossible that any one of them should be exercised without the elaborate co-operation of the other two. Discussion of this intriguing conception has continued unabated to the present day, so much so that it is now very difficult to separate the basic philosophical ideas from the manifold prejudices which have woven themselves into them. Nevertheless it is another of the achievements of Locke’s varied genius that he should have discovered the way in which to decompose, so to speak, the Hobbesian conception of sovereignty, and to give to it at least the semblance of a reasoned basis.
The theory of the ‘social contract’ is perhaps most familiarly associated with the great eccentric Jean-Jacques Rousseau (1712-1778), who threw to the winds the common sense and political sagacity which motivated Hobbes and Locke. He found in the contractual theory of politics, not only a philosophical basis for legitimacy, but also a pretext for his admiration of the ‘noble savage’ and a political elaboration of his grossly sentimental vision of human nature. Rousseau believed that man is good by nature and made bad only by institutions. (A view which most people hold during their adolescence, and which some continue to hold, with varying degrees of hysteria, as they grow older.) Rousseau extracted from this prejudice an influential philosophy of education (Emile, 1762), and a beautiful celebration of romantic love (La Nouvelle Heloise, 1761). He wrote the famous Social Contract (1762) under its influence. In this work the contractual basis of society is offered as the only possible excuse for it, and an extreme democracy (as opposed to mere representative government) is advocated as the best way of making sense of Locke’s theory of ‘tacit consent’. But the book also shows, and to some extent confronts, the paradoxes of extreme democracy. For the theory of the social contract compels Rousseau to favour what many individual participants in it could only regard as tyranny.
In Rousseau’s version the contract’s terms are very explicit. It involves ‘the total alienation of each associate, together with all his rights, to the whole community’. The reason for this is that nobody may, under the terms of such a contract, obtain a personal advantage, so that the only interest in assenting to it must be an interest in the common good. Hence in Rousseau’s version the contract creates an association with almost absolute rights over its members. The association thereby created is called, when passive, the ‘State’ and, when active, the ‘Sovereign’. In its active manifestation it has both personality and will. Rousseau calls this will the ‘general will’. The details of Rousseau’s theory need not here detain us—although we should note the idea, famous in his day, and murderous in the aftermath of revolution which Rousseau’s thinking did not a little to precipitate, that he whose will conflicts with the general will must be constrained by the general will, since his own participation in the social contract ensures that thereby he will merely be ‘forced to be free’. What is important from the philosophical point of view is the assertion that the general will is not to be thought of as the sum of individual wills. As Rousseau puts it, there is a distinction between the ‘general will’ and the ‘will of all’. The original contract does not merely aggregate the wills of those who subscribe to it: it brings into existence a new order of volition. This ‘general will’ is a separate entity, attached to the sovereign power, which is itself conceived in personal terms. It was this part of Rousseau’s analysis that was to inspire Hegel.
Why should one speak of the state as a person? Hegel in The Philosophy of Right (1821) confronts this question directly, and tries to reconcile it with intuitions concerning legitimacy which—while he pays lip-service to the theory of the social contract—are fundamentally anti-contractual. Kant had presented a picture of personality which involved the following features. A person is an agent; he is autonomous; he has will and reason. He also has rights, obligations, and duties, and it is of his nature to be treated as end and not as means, any other treatment being simply a way of denying his personhood. Whether or not he is also of necessity an organism was a question which Kant obscured, by replacing t
he distinction between animal and rational being by the more obscure (although in the context equally suggestive) distinction between the empirical and the transcendental self. Now it is clear that Hobbes’s ‘commonwealth’ is a kind of organism. It is born, it flourishes, it dies. It can be injured and healed, and its parts bear a relation to the whole which could fairly be called organic. (Admittedly, the concept of ‘organism’ is a deep and difficult one, subject of much philosophical debate from Aristotle to the present day. It would be too distracting at this juncture to do anything more than assume that we intuitively understand it.) What then can be meant by asserting that the commonwealth is also a person?
The Hegelian answer is this: first, the commonwealth has a will of its own, which is shown by the fact that there are acts of state, such as the declaration of war or the passing of a statute, which are the acts of no other person. Secondly, the state has reason. It acts for reasons, and can be persuaded and dissuaded—through constitutional processes—into doing this or that. Thirdly, the state has rights (against its citizens, and against other states). It also has obligations (for example, to provide for the wellbeing of its members). Fourthly, the state is to be treated not as means only, but as end. Its rights are to be respected, and it is to be regarded with those interpersonal attitudes, ranging from love to resentment, which we reserve for beings which have the nature of ends in themselves.
A Short History of Modern Philosophy: From Descartes to Wittgenstein, Second Edition Page 24
