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solutism as a French disease, and certainly the French had a bad case of it under Louis XIV.8

§2. The Meaning of Natural Law

1. As background to what Locke calls “The Fundamental Law of Nature” (FLN) I should first make some remarks about the meaning of natural law. In the natural law tradition, natural law is that part of the law of God which can be known by us by the use of our natural powers of reason. These powers discern both the order of nature open to our view and the intentions of God which are disclosed through that order. And on this ground, it is said that natural law is promulgated, or made known to us, by God through our natural reason (¶57).9 The following points explain why the terms “natural” and “law” in the term “natural law” are appropriate.

(a) First as to “law”: a law is a rule addressed to rational beings by someone with legitimate authority to regulate their conduct. (Here one might add to the definition of law the phrase: “for their common good,” as this would fit Locke’s view, given his definition of political power in ¶3 as the right to make and enforce laws—“all this only for the public good.”) Natural law is literally law, that is, it is promulgated to us by God who has legitimate and supreme legislative authority over all mankind. God is, as it were, the sovereign of the world with supreme authority over all its creatures; thus natural law is universal and associates mankind into one community with a law to govern it.10 To speak of natural law as promulgated is, of course, metaphorical, since natural law is not literally promulgated like the

8.See Laslett’s Introduction, pp. 62–65, 76f.

9.See also ¶124 where Locke says that the law of nature is plain and intelligible to all rational creatures; and ¶136 where he says that the law of nature is unwritten and found only in the minds of men.

10.Locke says: “What duty is, cannot be understood without a law; nor a law be known, or supposed without a law-maker, or without rewards and punishment.” Essay Concerning Human Understanding, Vol. I, Book I, Ch. 3, §12. See also Vol. I, Book II, Ch. 28, §6, where Locke says: “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 by some good and evil that is not the natural product and consequence of the action itself.” In that case it “would operate of itself without a law. This . . .

is the true nature of all law, properly so called.”

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law of worldly princes. But since natural law is literally law, it must be in some manner promulgated—that is, made public, or known—to those to whom it applies. Otherwise it is not law. This explains the propriety of the term “law” in the term “natural law.”

(b) Now consider the propriety of the term “natural.” One basis for this term is that, as stated above, natural law is made known to us, or at any rate can be, through the use of our natural faculties of reason to draw conclusions from the evident general facts and design of nature. Included among these general facts are such things as the natural needs, propensities and inclinations of human beings, the faculties and powers by which we differ from and are related to the animals and other parts of nature. Roughly, the idea is that, given the faith that God exists (or alternatively, that God’s existence itself can be shown by reason), we are able to discern from the order of nature what God’s intentions towards us must be, and that among these intentions is that we are to act from certain principles in our conduct toward one another. In view of God’s authority, these principles discerned by natural reason as God’s intentions are laws for us. Hence the term “natural” in the name “natural law.”

From the preceding we see that natural law differs from divine law. For divine law is that part of the law of God which can only be known by revelation. To ascertain the requirements of divine law is beyond the powers of our natural reason. Moreover, natural law is also distinct from all human enactments and so from the actual law of states, or what Locke sometimes calls “municipal, or positive, law.” The laws of states are to conform to the principles of natural law (when these are applicable). As Locke says (¶135), the obligations of the law of nature hold in society as well as in the state of nature, and the law of nature “stands as an Eternal Rule to all Men, Legislators as well as others.” Thus the principles of natural law are fundamental principles of right and justice applicable to the laws of states and to political and social institutions. Here is another reason for the term “law” in the name “natural law”: natural law applies to law and to legal institutions.

2. We should note finally that what Locke calls the Fundamental Law of Nature is not to be taken as the most fundamental principle of his philosophical theology as a whole; and the same is usually true for other views.

(a) The point is this: there must be some further and even more fundamental principle that accounts for God’s legitimate authority. In the absence of this authority, God’s enactments, however promulgated to us, will

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not be binding as laws for us. Different writers explain the grounds of God’s authority in different ways. In ¶6 (which I will be quoting later, in §3), Locke explains God’s authority over us by the right of creation. Since God has created us from nothing and must continually sustain our being if we are to go on existing, supreme authority over us resides in God.11 Hobbes, on the other hand, seems content to trace God’s authority to God’s omnipotence: dominion belongs to God “. . . not as Creator, and Gracious; but as Omnipotent.”12

(b) To conclude: even when the system of law is that of natural law, we must still distinguish between:

(i)Who has supreme authority in that system, and

(ii)Why that person has that authority, and

(iii)The principles that specify the content of the norms of the system. Thus the account of why God has legitimate authority over mankind is distinct from the account of the content of natural law itself and of the various norms and rules that are justified by reference to it.13

3. When I refer to natural law I understand it as just explained, namely, as the law of God as known by our natural reason. This is the traditional sense in which Locke uses it, and it is also central for him; so when he speaks of natural law or natural right, there is a reference, direct or indirect,

11.See Essays on the Law of Nature, pp. 151–157.

12.Leviathan, p. 187.

13.Locke says in the Essays on the Law of Nature that it is “the decree of the divine will discernible by the light of nature and indicating what is and what is not in conformity with rational nature, and for this very reason commanding or prohibiting” (p. 111). In the Essay Concerning Human Understanding (1690) he refers to the kinds of law we use to judge moral rectitude as the Divine Law: “. . . that law which God has set to the actions of men, whether promulgated to them by the light of nature, or the voice of revelation” (Vol. I, Book II, Ch. 28, §8). There is an incoherence in Locke’s account of the basis of right and justice: namely, that he wants to account for them by maintaining that the relevant principles thereof are God’s commands; on the other hand, that we are obligated to conform to God’s commands presupposes that God has rightful authority over us, a right of creation, and that God is wise and beneficent. The right of creation of a wise and beneficent God, however, cannot itself be commanded by God, as the validity of any such command would presuppose that right. Locke never satisfactorily resolved this question and was effectively criticized on this point by Samuel Clarke. A clear discussion of these matters is found in Michael Ayres, Locke: Epistemology-Ontology (London: Routledge, 1991), Vol. 2, Chs. 15–16. Locke’s doctrine is an example of the view Kant argues against in the Grundlegung in giving the third formula of the categorical imperative: Ak: IV: 431ff.

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to the fundamental law of nature understood as the law of God as known by reason.

There is, however, at least one possible exception. It is not clear whether or how the connection with the law of nature is to be established with regard to the principle of fidelity (that promises and compacts are to be kept): this Locke seems to take as part of the law of nature (¶14), but the grounds of this principle he does not consider. However, in the cases we are concerned with, for example, the natural right of persons to the equal freedom to which we are all born (in view of our powers of reason) and the natural right of property, the connection with the fundamental law of nature is clear enough. I come back to this later when we examine how the natural rights just mentioned are derived from the fundamental law of nature.

Observe finally that Locke’s conception of natural law provides us with an example of an independent order of moral and political values by reference to which our political judgments of justice and the common good are to be assessed. Correct or sound judgments are true of, or accurate with respect to, this order, the content of which is in large part specified by the fundamental law of nature as God’s law. Thus Locke’s view contains a conception of justification distinct from the conception of public justification in justice as fairness as a form of political liberalism.14 However, justice as fairness neither asserts nor denies the idea of such an independent order, or justification as showing moral and political judgments to be true by reference to this order.

§3. The Fundamental Law of Nature

1. I shall now review the statement and description of the law of nature, its role, its content and several clauses, as well as some of the rights

14. John Rawls: Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge: Harvard University Press, 2001), §9.2: “An essential feature of a well-ordered society is that its public conception of political justice establishes a shared basis for citizens to justify to one another their political judgments: each cooperates, politically and socially, with the rest on terms all can endorse as just. This is the meaning of public justification.”

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that Locke thinks derive from it. First, let’s note the very important statement of this law which reads as follows:

The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one another’s pleasure. And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of Creatures are for ours. Every one as he is bound to preserve himself, and not to quit his Station willfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb, or Goods of another. (¶6)

The most basic law of nature, or what Locke calls “the Fundamental Law of Nature,” is that “Man [is] to be preserved, as much as possible” (¶16); or, as he puts it in ¶134, it is “the preservation of the Society, and (as far as will consist with the public good) of every person in it.” Much the same is repeated in ¶¶135, 159, and 183.

2. The statement that “The State of Nature has a Law of Nature to govern it,” which opens the definition in ¶6, is supplemented by many passages throughout the Second Treatise that describe that natural law: Thus:

(a)In agreement with what I have said earlier, the Law of Nature is described as a “Declaration” of “the Will of God” (¶135).

(b)Concerning the fundamental law of nature, Locke says “Reason, which is that Law, teaches all Mankind” (¶6). Locke describes the fundamental law of nature as not only known by reason, but as the law “of reason and common Equity”(¶8); as “the right Rule of Reason” (¶10); as “the Common Law of Reason” (¶16), and as “the Law of Reason” (¶57).

(c)In ¶136 the fundamental law of nature is described as “unwritten,

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and so nowhere to be found but in the minds of Men.” In ¶12, it is “as intelligible and plain to a rational Creature, and a Studier of that Law, as the positive Laws of Commonwealths, nay possibly plainer; As much as Reason is easier to be understood, than the . . . intricate Contrivances of Men.” (See also ¶124.) All this fits with the idea that the Law of Nature is God’s will, “being promulgated or made known by Reason only” (¶57).

3. Locke also writes on the role of the fundamental law of nature:

(a)First, from ¶6 we see that the fundamental law of nature associates all mankind into one great natural community with the law of nature to govern it. In ¶172 Locke speaks of a man who puts himself into a state of war with another as having “quitted Reason, which God hath given to be the Rule betwixt Man and Man, and the common bond whereby human kind is united into one fellowship and society.” In ¶128 Locke says that the Law of Nature, common to us all, causes each of us and the rest of mankind to be “one Community, [making] up one Society distinct from all other Creatures.”

The law of nature would suffice to govern us were it not for the corruption and viciousness of degenerate people. There would be no need for us to separate into civil societies each with its distinct political authority, and so to split up “this great and natural Community” (¶128). Thus, the fundamental law of nature is a law for the community of humankind in the state of nature. This state, while a state of liberty, is not a state of license: it is bound by a law of nature and reason (¶6).

(b)The fundamental law of nature is also the regulative principle for political and social institutions of the various civil societies into which the community of humankind divides. Municipal (i.e., civil) law is right and just only when it is founded on, or accords with it. The fundamental law of nature does not cease to apply in society, but stands as an eternal rule to all men, legislators as well as others. No human sanction is good, or valid, when contrary to it.15

(c)The law of nature is normative and directive: it is a law to guide free and rational persons for their good. See the important statement in ¶57,

15. “The Obligations of the Law of Nature, cease not in Society . . . [but] . . . [stand] as an Eternal Rule to all Men, Legislators as well as others. The Rules that they make . . . must

. . . be conformable to the Law of Nature . . . and the fundamental Law of Nature being the preservation of Mankind, no Human Sanction can be good, or valid against it” (¶135; see also ¶171).

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