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This qualification keeps Locke™s censure of tyranny consistent with his
views on the prerogative, and it makes a judgment of the consequences
of lawlessness, rather than an obligation to observe authentic law, the
ground for opposing tyranny.
Locke does make some qualifications on the right of resistance. The
cause for dissatisfaction must be of “sufficient moment,”113 and the rebel
“must be sure he has Right on his side.”114 Not just any individual, but a
substantial part of the community must judge that the government has
betrayed its trust. In any case resistance is unlikely under other circum-
stances since a few private men are so powerless to recover what has been
taken from them that even the “Right to do so [to resist the established
government], will not easily ingage them in a Contest, wherein they are
sure to perish.”115
Rebellion need not, moreover, affect the prince or king if it is directed
at his subordinates who have violated their trust: “the Sacredness of the
person exempts him from all Inconveniences.”116 But if a king arbitrarily
dissolves the legislature, he declares a state of war with his subjects, and
then the king becomes a rebel. Apart from these qualifications, Locke
argues that a right to rebellion is not likely to be interpreted as an
invitation to anarchy because people desire peace and security and are
naturally disinclined to overthrow an established government, even when
their grievances are substantial. He also suggests that the right of resist-
ance is important chiefly as a threat because rulers are less likely to give

109 110 111 112
Ibid., 386. Ibid., 417. Ibid., 418. Ibid., 418.
113 114 115 116
Ibid., 397. Ibid., 404. Ibid., 422. Ibid., 420.
132 The modern quest

cause for rebellion if they believe that their subjects are likely to resist
misuse of power.
But otherwise, Locke defends a right of resistance to “the exercise of a
Power without right.” Indeed, the qualifications he makes elsewhere are
forgotten when he says that not only the “Body of the People,” but “any
single Man” has “a liberty to appeal to Heaven, whenever they judge the
Cause of sufficient moment. . . by a Law antecedent and paramount to all
positive Laws of men. . . . God and Nature never allowing a Man so to
abandon himself, as to neglect his own preservation.”117
Throughout, Locke™s emphasis falls on the self-evident nature of the
ground for resistance. If the people “universally have a perswasion,
grounded upon manifest evidence, that designs are carrying on against
their Liberties, and the general course and tendency of things cannot
but give them strong suspicions of the evil intention of their Governors,”
they cannot be blamed for resorting to rebellion.118 Whenever the people
come to believe that the legislators have designs on their property, they
are “thereupon absolved from any further Obedience, and are left to
the common Refuge, which God hath provided for all Men, against Force
and Violence. . . [and] have a Right to resume their original Liberty.”119
To those who protest that if the commands of a prince may be resisted
by anyone who feels aggrieved, anarchy and confusion will replace gov-
ernment and order, Locke replies, “That Force is to be opposed to noth-
ing, but to unjust and unlawful Force; whoever makes any opposition in
any other Case, draws on himself a just Condemnation both from God
and Man; and so no such Danger or Confusion will follow, as is often
suggested.”120 Furthermore, to say that men are not to be “absolved from
Obedience, when illegal attempts are made upon their Liberties or prop-
erties” is like saying “that honest Men may not oppose Robbers or
Pirates, because this may occasion disorder or bloodshed.” Whatever
undesirable consequences may attend such resistance should be charged
not “upon him, who defends his own right, but on him, that invades his
Neighbours.”121
Locke™s discussion of the right of resistance makes it clear that he
regards law as an instrument for promoting the welfare of a productive
enterprise, and that he considers conformity to legal procedures as but
one means for ensuring that the ruler remains faithful to his trust. If he
can discharge his trust more effectively by violating or ignoring legal
procedures, he is obliged to do so. If his subjects can better ensure the


117 118 119
Ibid., 397“98. Ibid., 436. Ibid., 430.
120 121
Ibid., 420. Ibid., 434“35.
John Locke 133
effective discharge of that trust by renouncing their obligation to obey
the law, they are similarly entitled, indeed have a duty, to rebel. The
formalities of the law are to be respected only insofar as obedience
produces the desirable consequence of promoting good policy.
All this rests on Locke™s assumption that the truth about what is right
in human conduct, public as well as private, is not subject to reasonable
disagreement. He is nowhere concerned with the possibility of disputes
among good and wise men about whether the law has been violated or
adequately observed, whether the public good has been faithfully pur-
sued, or what constitutes the public good. Such questions are meaningless
for Locke because he did not recognize that practical reasoning about
contingent matters, unlike demonstrative reasoning, arrives at conclu-
sions that are ineradicably disputable, and because he believed that moral
truth is as undeniable as mathematical truth.
Locke is indifferent to the possibility of such disputes among good and
wise men because he assumes that the truth about what is right is mani-
fest. This belief is rendered plausible by his religious faith combined with
his rejection of natural theology. Since he did not accept his predecessors™
intricate conception of a rational cosmic order and of the law that ruled
that order, he had no regard for what that conception implied about the
distinction between theoretical and practical reasoning, self-evident first
principles, and contingent conclusions. And he did not understand reason
as a creative faculty that can produce infinitely various interpretations of
experience and responses to it. His defense of natural rights rests ultim-
ately on a simple, fundamentalist conviction that what men need to know
in order to conduct their lives has been made manifest in Revelation and
that the meaning of Revelation is too plain to allow serious disagreement
among believers. As a result, Locke has left a complicated and dangerous
legacy for the philosophy of law.
His doctrine of natural law has been interpreted as a teaching about
natural rights, and it has been adopted by people without any religious
faith, who, at times perhaps even antagonistic to the Judaeo-Christian
tradition, are therefore neither influenced nor restrained by any reading of
Christian doctrine or Christian theology. Instead, they take their bearings
from an unpredictable variety of conflicting compasses. To such an
audience, Locke™s doctrine, stripped of its Christian underpinnings, be-
comes a defense of wholly arbitrary claims to “natural rights” or appeals
to “principles of reasonableness,” which can be and are used not only to
encourage violation of established law, but also to denigrate the concep-
tion of law as a set of formally authenticated rules on the ground that it
hinders the adoption of desirable social policies. Although such doctrines
are considerably cruder than Locke™s, their presuppositions about human
134 The modern quest

rationality and individuality and the rule of law are essentially the same
because they trace obligation not to rights that are established by human
contrivance but to indisputable rights given to human beings. Only the
exponents of these latter-day natural law theories do not deign to explain
how rights can be “given” without emanating from a Divine Ruler.
Yet even if their lack of Locke™s religious faith may lead them to somewhat
different views about what is desirable, the current advocates of natural
rights and natural law conclude, just as Locke did, that the rule of law is
an expedient for securing desirable social policy. By describing law as a
direction to our greater good, they fail to distinguish between the con-
straints of procedures, which are defined by rules of law, and the
constraints of commands. For such latter-day disciples of Locke, the only
alternatives are agreement and obedience or disagreement and rebellion.
Locke not only lost sight of Hobbes™s distinction between power and
authority, but he also departed radically from the pre-Hobbesian under-
standing of law. Locke™s doctrine of natural law, unlike that of any of his
predecessors, identifies law for the first time with an instrument for
serving a productive enterprise and achieving a given unitary end.
He accordingly abandoned the traditional understanding of law as the
bond of an association of independent agents pursuing diverse projects.
But the true radicalism of Locke™s innovation went unnoticed at the
time. Nor did the Lockian theme reappear in the conversation about
law until the nineteenth century. And it was fully developed only in the
twentieth century, though none of those who did so declared or probably
recognized their affinity with Locke.122

122
For the leading exposition of recent modern natural law theory, see John Finnis, Natural
Law and Natural Rights (Oxford: Clarendon, 1980).
8
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _Immanuel____________________________ _ _ _Kant______________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _



The new way of thinking about law, introduced by Immanuel Kant, has a
surprising affinity with the philosophies of both Aristotle and Hobbes.
For Kant derives his view of law from the requirements of moral integrity,
but does so without appealing to either revelation or transcendent meta-
physics. Kant has accordingly been acclaimed as the founder of the
modern philosophy of law. Yet he has also been charged with having no
philosophy of law.
Both reputations are plausible because Kant saw human beings as
inhabitants of two wholly distinct worlds. On the one hand, their bodily
existence makes them components of the natural, empirical world where
all objects are moved by causes external to themselves. In this respect,
human beings are mechanisms whose operation is determined by sensory
stimuli in accordance with the laws that govern the natural world. But
on the other hand, human beings are rational persons. They are not only
capable of exercising “theoretical reason” to discover, as Newton had,
the laws of the natural world, but they are also possessed of “practical
reason,” which enables them to choose which purposes to pursue by
means of utterances and actions without reference to contingent wants
or circumstances. Human beings are consequently distinguished by the
“freedom” to choose and to act as they “will.” Their frequent lack of
power to achieve their purposes does not qualify this “freedom.” And
their conduct cannot be said to be directed to their achievement of a single
comprehensive end, such as “happiness.”
As “free wills,” human beings are also subject to laws, but these are
moral laws that prescribe what ought to be done in order for freedom to
be fully and equally enjoyed by all human beings. These laws are known
a priori, by being derived from the “categorical imperative” that a rational
person is always to be treated as an end in himself and never merely as a
means. Moral laws therefore have no concern with the natural, empirical
world, i.e., with what happens, how people behave, or how they can best
get what they want or need. In short, moral laws have nothing to do with
either convenience or the consequences of actions. As moral laws are

135
136 The modern quest

made by reason wholly independently of experience, rational persons may
be said to be their author and to legislate for themselves. Being bound by
nothing outside their rational being in obeying moral laws, human beings
can enjoy their freedom.
Moral laws come in two varieties, ethical and juridical. The former
designate what ought to be done to maintain one™s integrity as a rational
person, and the only constraint is the consideration that a failure to
comply constitutes a denial of one™s rational personality. This consider-
ation is the only appropriate motive for obeying ethical laws. Ethical
laws accordingly command not only that the right ends be pursued, but
also that it be done for the right reason “ for the sake of doing one™s duty.
To obey the ethical law that tells me not to lie, I must refrain from lying
not out of fear of losing my reputation or being punished, but solely
because I desire to do what is right.
Juridical laws, however, are indifferent to motives and pertain only to
external actions, which are physical events in time and only insofar as they
affect others. They are concerned with securing to each individual the
freedom to exercise choice insofar as is compatible with the same freedom
for all others. Whereas ethical law requires that we repay our debts out of
a sense of duty, juridical law requires only that we restore what we owe,
and whether we do so out of a fear of punishment, hope of gain, or a sense
of duty is irrelevant. Nevertheless, juridical laws are a species of moral law
because their aim is to prevent anyone from performing actions that are
wrong in themselves, such as compelling others to act as means to one™s
own ends. In short, juridical laws are concerned with ordering the associ-
ation of human beings in a manner appropriate for their character as free
rational persons.
But if it is clear that juridical law, as such, is a species of moral law, the
great puzzle of Kant™s philosophy of law is how positive laws (the products
of human legislative enactments) can be, and can be recognized as, reflec-
tions of juridical law. We are told that his Rechtslehre (Science of Right) is
designed to provide “philosophical and systematic knowledge of the Prin-
ciples of Natural Right,” which are “a real foundation for actual positive
Legislation.” Without this foundation, positive law becomes no more than
an “empirical system,” which, because it is “void of rational principles,” is
“like the wooden head in the fable of Phaedrus, fine enough in appear-
ance, but unfortunately it wants brain.” To ensure that positive law is
more than this, the legislator has to consult the immutable rational prin-
ciples of right, which provide “a universal Criterion by which Right and
Wrong in general, and what is just and unjust” may be recognized.1 But

1
Immanuel Kant, The Philosophy of Law, trans. W. Hastie (Clifton, NJ: Augustus
M. Kelley, 1974), 43“44.
Immanuel Kant 137
unlike the classical and medieval writers whom Kant may seem to echo
here, he nowhere considers how a legislative procedure can be made to
ensure that positive law reflects the principles of natural right. On the
contrary, when he says that the laws of a state “are to be regarded as
necessary a priori “ that is, as following of themselves from the concep-
tions of external Right generally “ and not as merely established by
Statute,” he suggests that positive laws are indistinguishable from the
principles of right.2
Kant emphasized, moreover, that all rights that do and should appear
in positive law necessarily exist in the state of nature. He argues, for
instance, that a right to private property must be available without
positive law because things that can be possessed and used are to be
found in the world. If they could not be acquired, that would be tanta-
mount to denying their existence, or to annihilating them. Nor is it
possible that the right to property was originally a communal right
because, prior to civil union, communal ownership could only have been
established by a contract whereby everyone renounced a right of private
possession and transformed the land into a common possession. But
as there is no record of any such act, the notion that land was originally
a common possession is a fiction.
What can be done in the state of nature is to declare by word or deed
that something is mine and that others are obliged to abstain from using it
even when I am not in physical possession of it. But according to the laws
of right, I may not oblige anyone to do anything that I do not equally
recognize as an obligation. I cannot therefore oblige others to refrain
from interfering with my possessions unless I accord to every other person
whom I may encounter a similar guarantee that I will respect their claims.
I can then, in the state of nature, establish possession by making contracts
with individuals. Possession on this basis, however, has two shortcom-
ings. First, if a dispute should arise about the terms of the agreement,
there is no umpire competent to give an authoritative decision. And
second, there exists a “natural Inclination of men to play the master over
others, and to disregard the claims of the Right of others, when they feel
themselves their superiors by Might or Fraud.” Since all can discover such
a disposition by merely examining themselves, there is no need to wait for
“the melancholy experience of actual hostility” in order to be “entitled to
exercise a rightful compulsion towards those who already threaten him by
their very nature.”3 If someone obstructs or wrongs me, I have a right to
exercise constraint to prevent such a wrong because I would be hindering
a hindrance to external freedom. In the state of nature then, a right to
property can never be secure and is merely provisional.

2 3
Ibid., 165. Ibid., 157“58.
138 The modern quest

Only when everyone is subject to “universal, external, and public
Legislation, conjoined with authority and power,” can all possessions be
secure. That condition appears only in civil society, where there is a
common, collective, authoritative will. It follows from the natural right
to defend possession by force that there is a “Right to compel every one
with whom we could come into any kind of intercourse” to do whatever is
necessary to make possession secure.4 Since only a civil state can provide
a “competent external Power” that can secure to each what shall be
recognized as his, the principles of right make it obligatory to leave “the
state of Nature in which every one follows his own inclinations, and to
form a union of all those who cannot avoid coming into reciprocal
communication, and thus subject themselves in common to the external
restraint of public compulsory Laws.”5 Although no one can be said to
wrong anyone in the natural state, not even if they are engaged in war,
because what is available to one is available to all, those who fail to enter
into a civil state “must be considered as being in the highest state of
Wrong.”6
The civil condition is not the source of the rights enjoyed by its
members. Their rights, being determined by reason, exist prior to and
independently of civil law. Our rights are the ground, not the conse-
quence, of civil union. If there were no “Laws regarding the Mine and
Thine in the state of Nature” that “contain formally the very same thing
as they prescribe in the Civil state, when it is viewed merely according to
rational conceptions,” there “would be no obligation to pass out of that
state into another.” The only novelty introduced by the civil condition is a
“competent external Power” that provides “public compulsory Laws” to
restrain individuals from interfering with the rights of others.7
Despite his resemblance to Locke in this respect, Kant, far from stress-
ing a contractual element in civil union, describes the idea of an original
contract as symbolic. It is a way of representing the rightful constitution
of a civil union, whereby all “give up their external Freedom in order to
receive it immediately again as Members of a Commonwealth.” But Kant
emphasizes that the individual is not left with less freedom; rather, in
becoming a member of a commonwealth, a person exchanges the whole of
a “wild lawless Freedom” for “his proper Freedom. . . in the form of a
regulated order of dependence, that is, in a Civil state regulated by laws of
Right.”8
Kant, accordingly, does not regard the laws governing civil union as
an artifact but rather as a discovery, or perhaps as a product of the

4 5 6
Ibid., 77“78. Ibid., 164. Ibid., 158.
7 8
Ibid., 164“65. Ibid., 169“70.
Immanuel Kant 139
self-discovery of rational persons. But about the role performed by law,
two quite different conclusions may plausibly be drawn from Kant™s
account of civil union. On the one hand, law is presented as the rules
for the association of rational persons who could not otherwise reconcile
the freedom of each with the freedom of all. Law thus appears to be a
means of reconciling unity with diversity that would be no less necessary
if all men were perfectly rational. But on the other hand, as human
beings have a natural inclination to invade the rights of others through
force and fraud, law has the character of a master powerful enough to
restrain the circumstantial irrationality of human beings.
A similar ambivalence about the role of law appears in Kant™s discus-
sion of the powers of the sovereign. On the one hand, he is the supreme
lawmaker concerned with securing the greatest possible freedom for each
compatible with the freedom of all. This conception of the sovereign
inspires Kant™s distinction between a “paternal” government, which is
the most despotic of governments because it treats its citizens as “mere
children,” and a “Patriotic Government,” which treats people “as Citi-
zens” according to laws “that recognise their independence, each individ-
ual possessing himself and not being dependent on the absolute Will
of another beside him or above him.” The material well-being and happi-
ness of citizens may perhaps “be more agreeably and more desirably
attained in the state of Nature, or even under a despotic government.”
But the “greatest harmony” between the constitution of the state and the
principles of right can be achieved only under a patriotic government.9
On the other hand, however, the sovereign is a supreme proprietor as
well as the supreme commander of the people. As supreme proprietor, he
does not possess anything for his private use, but he “possesses every-
thing” because all rights to property are distributed by him, and the
sovereign may at any time revoke property rights, provided that he
compensates those, living at the time, who are deprived. In part, “Su-
preme proprietorship” is a necessary juridical conception representing the
unity of all private property under a universal public owner. But some-
thing more than that seems to be implied when Kant says that subjects
who have been deprived of their property have no grounds for complaint
because “the foundation of their previous possession lay only in the
Opinion of the People, and it can be valid only so long as this opinion
lasts.” When it becomes evident to those who lead and represent public
opinion that an institution such as church ownership of land has lost the
support of public opinion, that institution should be brought to an end.10


9 10
Ibid., 171“73. Ibid., 183“85.
140 The modern quest

As supreme proprietor, the sovereign also has a right to demand service
in war and to tax in order to maintain the state. Although, in general,
taxation should be imposed by the people themselves through their dep-
uties, the state may also impose a compulsory loan by decree if it
finds itself in immediate danger. Its rights as proprietor also entitle the
state to administer the economy as well as the army and the police. And
it has the right to command the police not only to secure public safety and
convenience, but also to protect the public against affronts to the moral
sense, such as begging, offensive noises and smells, or prostitution, since a
public whose sense of propriety has been blunted by such affronts is more
difficult to govern by law.11
The powers of the sovereign as supreme commander are also of a mixed
character. The power to distribute offices and dignities is entailed in
sovereignty. But Kant adds a power to impose taxes for the purpose of
securing the material welfare of the people, on the grounds that citizens
who lack material satisfactions may refuse to submit to law and that if
children perish, the state loses power. The sovereign may therefore
compel those with sufficient resources to contribute to the preservation
of their fellow citizens.
Although Kant acknowledges that it is difficult to provide such care
without offending “against Right or Morality,”12 he does not in any other
way recognize that the character he has assigned to the sovereign
as supreme proprietor and supreme commander is in any way incompat-
ible with that of supreme lawmaker. As head of a patriotic state, the
sovereign™s laws are supposed to secure the freedom of all in accordance
with the principles of right, whereas the laws of the supreme commander
and proprietor are expected to reflect public opinion, to manage resources
efficiently, and to increase the power of the sovereign. In the former role,
the sovereign has the character of a ruler; in the latter, he is the manager
of an enterprise. Yet all the commands of the sovereign appear to be

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