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commonwealth. And they thereby put themselves at the mercy of the
Sovereign™s will unfettered by the laws of the commonwealth.
In his discussion of crime and punishment, Hobbes thus introduced
new considerations and a new vocabulary into the discussion of law. The
absence in Hobbes™s world of a rational cosmos to provide a principle of
order made it impossible to define order as the rule of reason over
passion; order could be maintained only by human artifice, by social
arrangements invented to serve particular purposes. And Hobbes defined


38 39 40
Ibid., 215. Ibid., 215. Ibid., 216.
Thomas Hobbes 105
order as the absence of impediments to the efforts of individuals to pursue
the satisfaction of their wants. In making it clear that law is to be
understood wholly as a product of human artifice for which there is no
cosmic foundation or test, Hobbes denied that justice could have any
meaning other than what Aristotle called legal or conventional justice “
the law alone defined justice. Above all, by showing that the obligation to
obey the law is ultimately arbitrary, Hobbes made the concept of author-
ity the foundation for the rule of law. His argument consists of three
points: that there is nothing on which men can by nature agree, that no
one is by nature designated to be a ruler, and that no man can be
obligated to do what he has not agreed to do. Only if each agrees with
all to authorize a sovereign to make rules for all can everyone oblige
himself to obey a common set of rules and live with others in peace.
The effect of Hobbes™s revision was to make it unambiguously clear
that law constitutes a civil order whose only “ayme” is to enable its
members to pursue their self-chosen projects and to enjoy their achieve-
ments without fear of being arbitrarily molested. Hobbes encapsulated
this understanding of law in a new image that compared law not to a
pattern for a good life or to a doctor™s prescription, as his predecessors
had, but to a hedge: “For the use of lawes, (which are but Rules Author-
ised) is not to bind the People from all Voluntary actions; but to direct
and keep them [the people] in such a motion, as not to hurt themselves by
their own impetuous desires, rashnesse, or indiscretion; as Hedges are set,
not to stop Travellers, but to keep them in the way.”41 To speak of law as
a “hedge” unequivocally identifies it with Augustinian non-instrumental
rules, that is to say, rules designed to maintain certain conditions, not to
direct enterprises. And the complement of the concept of law as a hedge is
Hobbes™s concept of authority.
Hobbes™s reputation as an “absolutist” is due to a gross confusion of
respect for authority with submission to amoral, irrational power. This
confusion has distracted readers from noticing that Hobbes™s insistence
on the obligation to obey authentic law has much in common with
Socrates™ argument in the Crito and with Aquinas™ argument that even a
bad law, if duly promulgated, retains to some degree the quality of law
and therefore carries an obligation to be obeyed. In regarding law, even
when defective, as the indispensable condition of a civilized life, Hobbes
was wholly in accord with his ancient and medieval predecessors. But
pushing beyond the point at which Augustine had left off, he elaborated
an understanding of law in which it has no cosmic anchor and is wholly a


41
Ibid., 239“40.
106 The modern quest

product of human will, and he emphasized that it had an ineradicable
element of arbitrariness.
In founding law on authority, Hobbes did not suggest or assume that
the sovereign (however constituted) or his laws were beyond criticism. On
the contrary, Hobbes acknowledges that rulers can commit iniquities both
in making and dispensing their laws. Nor does he forbid subjects to
recognize or express their awareness of such iniquities. He only insists
that punishing the ruler for his iniquities belongs to God, not to his
subjects, and that any attempt by subjects to resist the will of the sover-
eign, even if founded on a justifiable recognition of his iniquity, consti-
tutes treason and reduces the subject to an enemy to be disposed of by the
sovereign as he chooses. It is only when a sovereign fails to perform his
task of maintaining civil peace that a subject is absolved from his obliga-
tion to obey the law. When a sovereign is displaced by another who has
conquered the land, then a subject may, in order to preserve his life “ the
natural right he never gives up “ transfer his allegiance. Here Hobbes™s
argument is clear enough. But about the more likely circumstances, in
which it may be disputable whether a sovereign has ceased to perform his
proper role, Hobbes says nothing.
Apart from this oversight, however, Hobbes made the authority of law
unambiguously independent of its desirability or justice. But the clarity is
gained at the expense of losing all those distinctions that are so important
in the Platonic, Aristotelian, and Thomist pictures of law and which
provided guidance for judging the moral quality of law. Not only the
distinction between natural and conventional justice, but also between
theoretical and practical reasoning disappears. Hobbes never addressed
himself to defining the moral quality or justice of law in the sense
understood by his predecessors “ as a pattern for distinguishing desirable
from undesirable behavior. He offers no hint of how to answer the
question: How can just law (in the sense of a morally desirable standard
of conduct) be distinguished from unjust law?
He evaded any such question through his translation of justice in the
sense of an order compatible with diversity into the concept of authority.
In making this translation, he eradicated the tension that dominated
ancient and medieval jurisprudence “ between justice in the sense of
liberty under law and justice as the set of rules which promote “the good
life.” Justice in the latter sense became meaningless because man could
not discover any indisputable ground for deciding whether the order
maintained by law is the right order. Thus justice was transformed by
Hobbes from a quality of law to a quality defined by law, and the only
meaningful question one could ask about law became whether it had been
made by someone authorized to make it. The distinction between power
Thomas Hobbes 107
and authority became the essence of the rule of law. Hobbes™s successors
did not, however, recognize the vital connection between this distinction
and his repudiation of the ancient cosmos, upon which they agreed with
him. The chief conclusion drawn from Hobbes™s account of law was
merely that he had divorced law from morality and sanctioned “absolut-
ism.” The history of the idea of law in modern times thus became an
odyssey of a search for a way to restore a rational moral element to law
without returning to the pagan cosmos. But the search meandered
through byways where inadvertently the pagan cosmos was rediscovered
in new guises that provided a comforting, if inadequate, escape from the
bleak clarity offered by Hobbes.
7 John Locke
_____________________________________________________________________________________________________________________________________________________



Hobbes™s radical break with the classical idea of law and his development
of St. Augustine™s doctrine were not taken up by his most immediate
successor, John Locke. Indeed, Locke wholly repudiated Hobbes™s idea of
law to father the modern version of natural law theory, which has far
more affinity with Cicero than with Aquinas. Locke™s view of law has
accordingly been treated as a model of how to escape from ancient and
medieval metaphysics without succumbing to Hobbes™s “extremism” or
“amoralism.” However, Locke is more rightly seen as a source of the
insidious modern confusion about law, which arises from combining
an avowed rejection of ancient and medieval metaphysics with treating
law as if there were nevertheless available a given and indisputable
foundation, or even blueprint, for it.
Although Locke is taken to be a major figure in the history of the
philosophy of law, he nowhere sets out a systematic account of the rule of
law. He seems to have agreed with his contemporary who described the
“punctilles of the law” as a subject in which “the more a man flutters the
more he is entangled.”1 The Essays on the Law of Nature, discovered by
von Leyden, were not published by Locke himself, and he never explained
just how his theory of natural law is connected with the rest of his
doctrine. There are many scattered observations on positive or civil law,
but nothing like an extended discussion. A systematic philosophy of law
can, however, be assembled from Locke™s writings on a variety of topics.
In a number of contexts Locke undoubtedly advocates the rule of law
in a wholly traditional fashion. He says that those who govern are bound
to do so by duly promulgated standing laws, which along with “known
Authoris™d Judges” he contrasts to “extemporary Arbitrary Decrees.”
Locke emphasizes also, much as his predecessors had, the importance of
having such laws in writing: “For the Law of Nature being unwritten, and


1
John Locke, Two Tracts on Government, ed. Philip Abrams (Cambridge: Cambridge
University Press, 1967), 87.



108
John Locke 109
so no where to be found but in the minds of Men, they who through
Passion or Interest shall mis-cite, or misapply it, cannot so easily be
convinced of their mistake where there is no establish™d Judge: And so it
serves not, as it ought, to determine the Rights, and fence the Properties
of those that live under it.”2 He points out that laws have the virtue of
having been made before the event to which they might be relevant; he
equates “Absolute Arbitrary Power” with “Governing without. . . stand-
ing laws” and describes subjection to arbitrary power as a “worse condi-
tion than the state of Nature.”3 Everyone should be equally subject to the
law: the rules are not “to be varied in particular Cases” and the same rule
ought to govern both “Rich and Poor . . . the Favourite at Court, and the
Country Man at Plough.”4 In traditional fashion as well, Locke argues
that what particular form a government takes is far less important than
that “the Ruling Power ought to govern by declared and received Laws,
and not by extemporary Dictates and undetermined Resolutions.”5 And
Locke™s definition of liberty is familiar and congenial to admirers of the
rule of law: “Freedom of Men under Government, is, to have a standing
Rule to live by, common to every one of that Society, and made by the
Legislative Power erected in it; A Liberty to follow my own Will in all
things, where the Rule prescribes not; and not to be subject to the
inconstant, uncertain, unknown, Arbitrary Will of another Man.”6
In describing the rule of law as the alternative to arbitrary power,
Locke is wholly at one with his predecessors. He departs from them in
just that aspect of his doctrine that is supposed to have made him such an
effective defender of the rule of law and liberty, his theory of natural law.
In his early Essays on the Law of Nature, Locke described the truths
of natural law as “so manifest and certain that nothing can be plainer.”7
In the Second Treatise, he went further to say that natural law is “as
intelligible and plain to a rational Creature, and a Studier of that
Law, as the positive Laws of Common-wealths, nay possibly plainer; As
much as Reason is easier to be understood, than the Phansies and intri-
cate Contrivances of Men, following contrary and hidden interests put
into Words.”8 In the Essay Concerning Human Understanding, Locke


2
John Locke, Two Treatises of Government, 2nd ed., ed. Peter Laslett (Cambridge:
Cambridge University Press, 1967), 376.
3
Two Treatises, 377.
4
Ibid., 381.
5
Ibid., 378.
6
Ibid., 302.
7
John Locke, Essays on the Law of Nature, ed. W. von Leyden (Oxford: Clarendon,
1954), 201.
8
Two Treatises, 293.
110 The modern quest

explained more fully the suggestions in the early Essays about how the
truths of natural law became known to man.
They could not be discovered from the opinions, customs, traditions of
human beings, nor any other second-hand knowledge,9 because every-
where there are men, indeed whole nations, whose thought and behavior
flagrantly violate natural law, who consider it “praiseworthy to commit. . .
such crimes as are utterly loathsome to those who think rightly and live
according to nature.”10 The same evidence establishes that knowledge of
natural law is not innate in the human mind, for if it were no one could be
ignorant of natural law. In both his earliest reflections on the law of
nature and his Essay Concerning Human Understanding, Locke insisted
that the truth of natural law had to be discovered by the proper exercise of
reason on the material provided by the senses, without which reason is as
helpless as a laborer “working in darkness behind shuttered windows.”11
The role of reason is that of a passive “discursive faculty. . . which
advances from things known to things unknown and argues from one
thing to another in a definite and fixed order of propositions.”12 The
senses reveal “the magnificent Harmony” of the “visible structure and
arrangement of this world,” where everything is regularly and constantly
made.13 From observing that the world has a definite order, reason
concludes that “some Deity is the author of all these things”14 and that
men are wholly dependent on Him because His will determines whether
they are brought into the world, maintained, or taken away.
Being the product of God™s workmanship, man is his property and
wholly subject to His will. Since nothing in the world is made without a
purpose, God must have designated mankind to fulfill some particular
end. And since God orders everything in the world by immutable laws,
from the idea of an all-powerful Creator and man™s dependence on Him
there necessarily follows “the notion of a universal law of nature binding
on all men.”15
What is new in this picture of the relationship between God and man
arises from Locke™s repudiation of traditional metaphysics. Whereas the
highly refined metaphysical categories of medieval natural theology
allowed for a distinction between different sorts of ends or purposes “
between, for instance, a final, material, efficient, and formal cause “ no
such distinctions were available to Locke. He accordingly reduced the

9 10
Essays on the Law of Nature, 133“35. Ibid., 191.
11 12
Ibid., 149. Ibid., 149.
13
John Locke, An Essay Concerning Human Understanding, ed. Peter H. Nidditch (Oxford:
Clarendon Press, 1975), 447; cf. Essays on the Law of Nature, 133.
14
Essays on the Law of Nature, 133; see also 109“21, 147“59.
15
Ibid., 133.
John Locke 111
relationship between God and man to that of potter and clay, what has
been called the workmanship model, in which man is simply “dependent”
on God. The law of nature then becomes a “decree of the divine will”16
prescribing “definite duties. . . which cannot be other than they are.”17
The instructions of natural law seen in this fashion are manifest and
indisputable, making it perfectly clear that God wishes us to “do this
but leave off that.”18
That Locke sees laws as instructions for behavior is suggested as well by
his argument that the law of nature does not restrict freedom. Men who
fail to observe it are slaves of their passions, unable to consider what
action will best promote their happiness. In submitting to the law of
nature, they are not being restricted, but are being shown how to achieve
what they truly, rather than apparently, desire.
Just how such definite instructions could be reconciled with responsi-
bility for sin is explained in the Essay Concerning Human Understanding.
There man is described as being born with a drive or instinct to seek
pleasure and avoid pain, summed up as seeking happiness. That explan-
ation does not contradict Locke™s earlier denial that human beings have
innate ideas because pleasure and pain have the character not of ideas, but
of sensations that give rise to desire. What immediately “determines the
Will. . . to every voluntary Action, is the uneasiness of desire, fixed on
some absent good.”19 The great privilege granted to men by making them
“finite intellectual Beings” is that they can suspend action in order to
scrutinize their desires and deliberate about whether satisfying a desire
would interfere with achieving “true Happiness.” This constitutes their
liberty, which is “improperly. . . call™d Free-Will.”20 Human freedom
consists in the ability to stop desires from determining what we do until
we have considered the consequences. The capacity for such suspension of
desire prevents men from being robots who cannot distinguish between
will and desire, and when they exercise that capacity they have done their
duty.21 As God “requires of us no more than we are able to do,” he would
not chastise anyone who failed to master himself under torture. But in
ordinary circumstances, the “right direction of our conduct to true Hap-
piness” depends on restraining our disposition to satisfy a present desire
until reason has given its judgment.22 And God has provided an irresist-
ible inducement for such restraint through “The Rewards and Punish-
ments of another life.” Even those who lack faith are bound to be affected
by the “bare possibility” of such a future state since there is no absolute

16 17 18
Ibid., 111. Ibid., 199. Ibid., 151.
19
Concerning Human Understanding, 252.
20 21 22
Ibid., 267“68, 263. Ibid., 267. Ibid., 268.
112 The modern quest

proof of its nonexistence.23 Whatever will secure eternal bliss is action in
conformity with God™s will.
Even in the shorter run, God has constructed us in such a fashion that a
rational calculation of what will produce more pleasure will direct us
properly. The pleasure and pain that men experience are the good and
evil that attend our observance or breach of God™s law; they are the
reward and punishment that He has ordained to enforce the natural
law. In this way, the Essay Concerning Human Understanding explains
Locke™s assertion in the Essays on the Law of Nature that God not only
“demands of us that the conduct of our life should be in accordance with
his will,” but has made clear what things he wishes that we should do.24
Bound up with this view of the nature of reason and the relationship
between man and God is an understanding of moral conduct that exalts
the idea of law. It appears not only in the early Essays, but also in the later
Essay Concerning Human Understanding, where Locke describes a “Moral
Relation” as “the Conformity, or Disagreement, Men™s voluntary actions
have to a Rule, to which they are referred, and by which they are
judged.”25 And he defines moral good and evil as “the Conformity or
Disagreement of our voluntary Actions to some Law, whereby Good or
Evil is drawn on us, from the Will and Power of the Law-maker.”26
Conformity to law given by a superior will is for Locke the essence of
moral conduct because there is nothing in the human will by itself that can
demand dutiful action. Nor can human reason by itself distinguish virtue
from vice. Left to himself man is incomplete, for he is a dependent being.
If he did not subordinate his will to another superior will, satisfaction of
his own desires would be the only measure of his actions. He would
become a god to himself and a slave to his passions.27 This picture of
moral conduct follows from Locke™s denial that human reason has a
creative power to invent laws for itself and from his view that reason
can do no more than discover the laws made by God. That is why Locke
concludes that “the formal cause” of law consists of its being “the decree
of a superior will” that informs man about “what is and what is not to
be done.”28
Because a relationship in terms of law is defined by Locke as a rela-
tionship between a superior and an inferior will, Locke considers enforce-
ment intrinsic to the idea of law and not merely an addition to it: “For


23 24
Ibid., 281. Ibid., 151.
25 26
Concerning Human Understanding, 350. Ibid., 351.
27
James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge:
Cambridge University Press, 1980), 36.
28
Locke, Essays on the Law of Nature, 111“13.
John Locke 113
since it would be utterly in vain, to suppose a Rule set to the free Actions
of Man, without annexing to it some Enforcement of Good and Evil, to
determine his Will, we must, where-ever we suppose a Law, suppose also
some Reward or Punishment annexed to that Law.”29 Apart from the
natural consequence of an action, there must be some independent conse-
quence in the form of reward or punishment if an action is to be affected
by a rule. Otherwise, “It would be in vain for one intelligent Being, to set a
Rule to the Actions of another, if he had it not in his Power, to reward the
compliance with, and punish deviation from his Rule.”30 A rule cannot,
then, qualify as a law unless it carries sanctions for disobedience. And
conversely, whatever carries a sanction can qualify as law. Thus, Locke
distinguishes three kinds of law: the will of God made manifest in natural
law and Revelation, which is sanctioned by the pleasure and pain attached
to good and evil in this world and the next; civil law, which is enforced by
the power of the commonwealth to take away “Life, Liberty, or Goods,
from him, who disobeys”; and rules of fashion, which are just as much
law as the others, Locke insists, because they are enforced by social
disapproval, which no man can endure.31 By thus connecting law with
punishment as well as by identifying law with the command of a superior
will, Locke makes the exercise of power (or force) an essential ingredient
of law.
All laws rest ultimately on natural law and on God because even
though natural law is discovered by reasoning from observations of the
natural constitution of things, what is being observed is what God has
willed. Because recognizing natural law to be God™s command is para-
mount for Locke, he refused to extend toleration to atheists, who, as they
do not acknowledge their dependence on God, cannot recognize any
duties. Therefore, “The taking away of God, though but even in thought,
dissolves all.”32
Although Locke™s claim that knowledge of what is good and evil is
given to man by God and nature appears to be at one with his classical
and medieval predecessors, he departs radically from them because (with
the exception of Cicero) they endow natural law with a fundamentally
different character. Since classical and medieval natural law consists of
highly abstract principles, it does not, and cannot, provide precise prac-
tical instructions or commands and is thereby compatible with significant
diversity at the level of practical action. No such room for uncertainty
about practical conclusions is acknowledged by Locke. His reputation for
taking a modest view of knowledge rests on his description of himself as

29 30 31
Concerning Human Understanding, 350. Ibid., 351“52. Ibid., 353.
32
John Locke, The Works of John Locke, 12th ed., vol. V (London: Rivington, 1824), 47.
114 The modern quest

only “an Under-Labourer. . . clearing Ground a little.”33 But within the
areas that he chose to clear, Locke had a Ciceronian confidence about

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