Autor: Strauss, Leo

Buch: Natural Right and History

Titel: Natural Right and History

Stichwort: Locke; Naturrecht (im Gefolge von Hobbes);

Kurzinhalt: These are the fundamental rules of the law of nature on which the argument of the Treatise is based: the law of nature is nothing other than the sum of the dictates of reason in regard to men's "mutual security" ...

Textausschnitt: 226a What, then, is the status of the law of nature in Locke's doctrine? What is its foundation? There is no rule of the law of nature which is innate, "that is, ... imprinted on the mind as a duty." This is shown by the fact that there are no rules of the law of nature, "which, as practical principles ought, do continue constantly to operate and influence all our actions without ceasing [and which] may be observed in all persons and all ages, steady and universal." However, "Nature ... has put into man a desire of happiness, and an aversion to misery; these, indeed, are innate practical principles": they are universally and unceasingly effective. The desire for happiness and the pursuit of happiness to which it gives rise are not duties. But "men ... must be allowed to pursue their happiness, nay, cannot be hindered." The desire for happiness and the pursuit of happiness have the character of an absolute right, of a natural right. There is, then, an innate natural right, while there is no innate natural duty. To understand how this is possible, one merely has to reformulate our last quotation: pursuit of happiness is a right, it "must be allowed," because "it cannot be hindered." It is a right antedating all duties for the same reason that, according to Hobbes, establishes as the fundamental moral fact the right of self-preservation: man must be allowed to defend his life against violent death because he is driven to do so by some natural necessity which is not less than that by which a stone is carried downward. Being universally effective, natural right, as distinguished from natural duty, is effective in the state of nature: man in the state of nature is "absolute lord of his own person and possessions."1 Since the right of nature is innate, whereas the law of nature is not, the right of nature is more fundamental than the law of nature and is the foundation of the law of nature. (Fs)

227a Since happiness presupposes life, the desire for life takes precedence over the desire for happiness in case of conflict. This dictate of reason is at the same time a natural necessity: "the first and strongest desire God planted in men, and wrought into the very principles of their nature, is that of self-preservation." The most fundamental of all rights is therefore the right of self-preservation. While nature has put into man "a strong desire of preserving his life and being," it is only man's reason which teaches him what is "necessary and useful to his being." And reason--or, rather, reason applied to a subject to be specified presently--is the law of nature. Reason teaches that "he that is master of himself and his own life has a right, too, to the means of preserving it." Reason further teaches that, since all men are equal in regard to the desire, and hence to the right, of self-preservation, they are equal in the decisive respect, notwithstanding any natural inequalities in other respects.2 From this Locke concludes, just as Hobbes did, that in the state of nature everyone is the judge of what means are conducive to his self-preservation, and this leads him, as it did Hobbes, to the further conclusion that in the state of nature "any man may do what he thinks fit."3 No wonder, therefore, that the state of nature is "full of fears and continual dangers." But reason teaches that life cannot be preserved, let alone enjoyed, except in a state of peace: reason wills peace. Reason therefore wills such courses of action as are conducive to peace. Reason dictates, accordingly, that "no one ought to harm another," that he who harms another--who therefore has renounced reason--may be punished by everyone and that he who is harmed may take reparations. These are the fundamental rules of the law of nature on which the argument of the Treatise is based: the law of nature is nothing other than the sum of the dictates of reason in regard to men's "mutual security" or to "the peace and safety" of mankind. Since in the state of nature all men are judges in their own cases and since, therefore, the state of nature is characterized by constant conflict that arises from the very law of nature, the state of nature is "not to be endured": the only remedy is government or civil society. Reason accordingly dictates how civil society must be constructed and what its rights or bounds are: there is a rational public law or a natural constitutional law. The principle of that public law is that all social or governmental power is derivative from powers which by nature belong to the individuals. The contract of the individuals actually concerned with their self-preservation--not the contract of the fathers qua fathers or divine appointment or an end of man that is independent of the actual wills of all individuals--creates the whole power of society: "the supreme power in every commonwealth [is] but the joint power of every member of the society."4 (Fs)

229a Locke's natural law teaching can then be understood perfectly if one assumes that the laws of nature which he admits are, as Hobbes put it, "but conclusions, or theorems concerning what conduces to the conservation and defense" of man over against other men. And it must be thus understood, since the alternative view is exposed to the difficulties which have been set forth. The law of nature, as Locke conceives of it, formulates the conditions of peace or, more generally stated, of "public happiness" or "the prosperity of any people." There is therefore a kind of sanction for the law of nature in this world: the disregard of the law of nature leads to public misery and penury. But this sanction is insufficient. Universal compliance with the law of nature would indeed guarantee perpetual peace and prosperity everywhere on earth. Failing such universal compliance, however, it may well happen that a society which complies with the law of nature enjoys less of temporal happiness than a society which transgresses the law of nature. For in both foreign and domestic affairs victory does not always favor "the right side": the "great robbers ... are too big for the weak hands of justice in this world." There remains, however, at least this difference between those who strictly comply with the law of nature and those who do not, that only the former can act and speak consistently; only the former can consistently maintain that there is a fundamental difference between civil societies and gangs of robbers, a distinction to which every society and every government is forced to appeal time and again. In a word, the law of nature is "a creature of the understanding rather than a work of nature"; it is "barely in the mind," a "notion," and not "in the things themselves. " This is the ultimate reason why ethics can be raised to the rank of a demonstrative science.1 (Fs)

230a One cannot clarify the status of the law of nature without considering the status of the state of nature. Locke is more definite than Hobbes in asserting that men actually lived in the state of nature or that the state of nature is not merely a hypothetical assumption.2 By this he means, in the first place, that men actually lived, and may live, without being subject to a common superior on earth. He means, furthermore, that men living in that condition, who are studiers of the law of nature, would know how to set about remedying the inconveniences of their condition and to lay the foundations for public happiness. But only such men could know the law of nature while living in a state of nature who have already lived in civil society, or rather in a civil society in which reason has been properly cultivated. An example of men who are in the state of nature under the law of nature would therefore be an elite among the English colonists in America rather than the wild Indians. A better example would be that of any highly civilized men after the breakdown of their society. It is only one step from this to the view that the most obvious example of men in the state of nature under the law of nature is that of men living in civil society, in so far as they reflect on what they could justly demand from civil society or on the conditions under which civil obedience would be reasonable. Thus it becomes ultimately irrelevant whether the state of nature understood as a state in which men are subject only to the law of nature, and not to any common superior on earth, was ever actual or not.3 (Fs)