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where Locke says: “For Law, in its true Notion, is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest, and prescribes no farther than is for the general Good of those under that Law. Could they be happier without it, the Law, as a useless thing would of itself vanish. . . . the end of Law is not to abolish or restrain, but to preserve and enlarge Freedom. . . . where there is no Law, there is no Freedom. For Liberty is to be free from restraint and violence from others which cannot be, where there is no Law.”

For Locke, then, the ideas of reason and law, of freedom and the general good, are closely connected. The fundamental law of nature is known by reason; it prescribes only for our good; it seeks to enlarge and to preserve our freedom, that is, our security from the restraint and violence of others. Liberty abides by law and is distinct from license, which abides by no law. Here law is the law of reason given by the law of nature.

§4. The State of Nature as a State of Equality

1. From its role as just described we see that the fundamental law of nature is the basic law of both the state of nature and political society (applying to its political and social institutions). The state of nature is, for Locke, a state of perfect freedom and equality (¶4):

(i)It is a state of freedom because all are at liberty to order their actions and to dispose of their possessions and persons as they see fit, within the limits set by the law of nature. It is not necessary that they ask the permission of anyone else, nor are they dependent on another’s will.

(ii)The state of nature is a state of equality, that is, a state of equal power and jurisdiction among persons, all being, as it were, equally sovereign over themselves: “all being Kings,” as Locke says in ¶123. Clearly equal power means equal liberty and political authority over oneself. Power is not to be understood as strength, or control over resources, or much less as force, but as right and jurisdiction.

In ¶54 Locke makes the important point that this state of equal freedom is compatible with various kinds of inequalities, for example, inequalities arising from differences of age, merit, or virtue; and, as it turns out, differences in inherited or acquired (real) property. As we have noted, the equality Locke speaks of is a state of equal right to our natural freedom, a

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state of equal jurisdiction over ourselves under the law of nature. This freedom we are born to in virtue of our capacity for reason, and it is rightfully ours when we attain the age of reason (¶57).

2. By starting with the state of nature as a state of equal freedom, Locke is flatly rejecting Robert Filmer’s starting point, which was that we are born in a state of natural subordination.16 Does Locke present an argument for his starting point? Or is he rather, as I am inclined to think, elaborating a certain conception of human society under God? Locke’s explanation of his view (¶4) is that God has not by a “manifest Declaration” designated any one person as having an undoubted right of (political) dominion and sovereignty over the rest. God could do this but has not. Given the historical fact that God has not, nothing is more evident than that persons of the same natural kind and possessing all the same (relevant) advantages of nature are born to a state of equal freedom and political jurisdiction over themselves.

I think Locke’s view here is this: No one could have political authority over others unless God had so designated by a manifest declaration, or unless there were relevant difference(s) between that person and the rest. But given that God has not so declared, and given that we are of the same natural kind and possess all the same (relevant) advantages of nature, we are born to a state of equality: that is, to a state of equal freedom and political jurisdiction over ourselves. Certainly inequalities of age, merit, and virtue, and of property, exist (¶54). But they are not, for Locke, relevant differences for establishing political authority, which is (to abbreviate) “a Right of making Laws with Penalties of Death . . . and of employing the force of the Community, in the Execution of such Laws . . ., and all this only for the Public Good” (¶3).

Perhaps it is not surprising, then, that for Locke political authority can arise only by the consent of those with equal jurisdiction over themselves. He simply elaborates a different conception of political society than Filmer. Ask yourself: Is this a fault in Locke, and if so, why?

16. All are born into natural political subordination, except for those few who are designated by God to be dominant, and to be absolute rulers (through tracing their lines by the rule of primogeniture back to Noah, and thence to Adam). See Filmer, Patriarcha. Locke’s First Treatise is devoted to refuting Filmer’s argument that God gave ultimate power to Adam, and that all legitimate sovereigns inherit that power directly from Adam. Locke reiterates his major points in ¶1 of the Second Treatise.

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§5. The Content of the Fundamental Law of Nature

1.This brings us finally to the content of the fundamental law of nature, namely, what it prescribes, including the several (natural) rights Locke takes it to imply. In talking about equality above, we have already said something about those rights. The term “Fundamental Law of Nature” is used in: ¶¶16, 134, 135, 159, 183; and there are also statements about the “Law of Nature” in: ¶¶4, 6, 7, 8, 16, 57, 134, 135, 159, 171, 172, and 181–183.

Two important clauses of the Fundamental Law of Nature are contained in the statement I quoted earlier from ¶6. These read as follows:

(a) The first clause: “being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.”

(b) The second clause: “Every one as he is bound to preserve himself, and not to quit his Station willfully; so by 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.”

Note the force of “by like reason” in the second clause. I am bound to preserve myself because I am God’s property; but others also are God’s property, and so for the same reason I am bound to preserve them also, at least when their preservation is not in competition with mine. In ¶134 Locke says: “the first and fundamental natural Law, which is to govern even the Legislative itself, is the preservation of Society and (as far as will consist with the public good) of every person in it.”

(c) A third clause, in ¶16, concerns a priority for the innocent:

“Man being to be preserved, as much as possible, when all cannot be preserved, the safety of the Innocent is to be preferred.”

2.One application of this last clause is to self-defense: if I am wrongly attacked by another intending to take my life, then since I am innocent (let’s assume), I have a right of self-defense.

Another application of the third, and also of the second clause is to protect the families (the wives and children) of those violent men who begin an unjust war, seeking conquest. Since their families are innocent—not involved in their guilt and destruction—enough property and goods must be left to them by the (just) victor so that they do not perish. (See ¶¶178–183.)

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Locke says, in ¶183: “. . . the Fundamental Law of Nature being, that all, as much as may be, should be preserved, it follows, that if there be not enough fully to satisfy both, viz. for the Conqueror’s Losses, and Children’s Maintenance, he that hath, and to spare, must remit something of his full Satisfaction, and give way to the pressing and preferable Title of those, who are in danger to perish without it.”

Locke also states that even the guilty are sometimes to be spared: “for the end of Government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent” (¶159). In this paragraph, Locke is stressing that all members of society are to be preserved and that the sovereign (the Crown), in those cases the law cannot foresee, may exercise its discretion (prerogative) in preserving “as much as may be,” to use Locke’s phrase.

§6. The Fundamental Law of Nature as the Basis of Natural Rights

1.The natural rights we shall review do not to derive from the fundamental law of nature alone (with the content just discussed), but from that law as supplemented by two premises:

(i) The fact of God’s silence: that God has not designated anyone to exercise political authority over the rest of humankind; and

(ii) The fact of equality: that we are “Creatures of the same species and rank promiscuously born to all the same advantages of Nature [with respect to establishing political authority] and the use of the same faculties [powers of natural reason and will, and so on]” (¶4).

2.As Locke first discusses these rights in ¶¶7–11, they are:

(a)The executive right we each have to punish transgressors of the fundamental law of nature; for that law would be in vain if no one had the power to execute (enforce) it and thereby preserve the innocent and restrain offenders. Since the state of nature is a state of equality—equal (political) jurisdiction—all have this executive right equally: this right deriving from our right to preserve mankind.

(b)The right to seek reparation, which right derives from our right of self-preservation.

In the social compact we give up our personal right to preserve ourselves and the rest of mankind to be regulated by the laws of society, so far

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as the preservation of ourselves and society shall require. We wholly give up the right of punishing, and engage ourselves to assist the executive power of society as its laws may require (¶130; see also ¶¶128–130).

3.It is important to recognize that for Locke nearly all natural rights have a derivation. Aside from rights associated with the principle of fidelity, I believe he views them as following from the fundamental law of nature, together with the two premises (the two facts) noted above: the fact of God’s silence, and the fact of equality, as well, of course, as from the fact of God’s legitimate authority over us. An example will convey what is meant:

Locke wishes to argue, against Filmer, that in the state of nature man has a natural right of private property (to be discussed in the third lecture on Locke). This right does not depend on the express consent of the rest of humankind. In the state of nature man is at liberty to use what “he hath mixed his Labor with,” provided first, that there is enough and as good left for others (¶27) and second, that we take no more than we can use, so that nothing we take spoils (¶31).

Now this rule (that we are at liberty to use what we have mixed our labor with, subject to these two provisos) is a law of nature, let’s say. It expresses a natural right (a liberty of use) in the sense that it is a rule that is reasonable for the first stage of the state of nature; and under those circumstances it gives us a liberty of use. Note though that this right follows from the fundamental law of nature.

Locke supposes that (i) given that fundamental law—that all mankind is to be preserved, etc.—and (ii) given that the bounty of nature is for our use, and (iii) given that the (express) consent of the rest of mankind is impossible to obtain, it must be God’s intention that we may appropriate from nature’s bounty and make use of it subject to the two provisos. Otherwise, all mankind, and, so far as possible, every member of it, could not be preserved.

Thus, the natural right of property (the liberty to use) in the state of nature is the conclusion of an argument from the fundamental law of nature (supplemented by other premises). I think the same is true for other cases of natural rights, modulo the rights based on the principle of fidelity.

4.The significance of the preceding remarks is that Locke does not found his social contract doctrine on a list of natural rights and natural laws without any explanation of where they come from. While the idea of such a list is not as such implausible, it is not Locke’s. He does say that even

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while in a state of nature men must be bound by their promises for “. . . Truth and keeping Faith belongs to Men, as Men, and not as Members of society” (¶14). Telling the truth and keeping faith are presumably part of the fundamental law of nature, a further aspect included in it, as is the priority for the protection of the innocent. Perhaps it is part of the law of nature more generally conceived. God’s right of creation is also treated as evident, but that is not, certainly, a natural right.

Thus, Locke starts from the principle of the fundamental law of nature and these two facts: the fact of equality, and the historical fact (as he argues in the First Treatise) that God has not designated anyone to have political authority over the rest. He then derives various natural rights from that basis.

We should be clear that our natural rights depend upon our prior duties, namely, duties imposed by the fundamental law of nature and by our duty to obey God, who has legitimate authority over us. So within Locke’s view, understood as a theological doctrine, we are not self-authenticating sources of valid claims, as I have used that term in characterizing the conception of the person in justice as fairness.17 This is because our claims are founded, within Locke’s conception, on prior duties owed to God. However, within a political society that guarantees liberty of conscience, say (which Locke’s affirms), these claims when made by citizens will be selfauthenticating, in the sense that from that society’s political point of view, these claims are self-imposed.

5. Finally, it is very important that the fundamental law of nature is a distributive, not an aggregative, principle. By this I mean that it does not direct us to strive for the greatest public good, say, to preserve the greatest number of persons. Rather, it expresses concern for each person: while mankind is to be preserved, in so far as is possible, so is every member of mankind (¶134). Moreover, as complemented by other premises (God’s silence about political authority and the fact of equality), the law of nature assigns certain equal natural rights to all persons (who possess the powers of reason and are capable of being masters of themselves).

Moreover, these rights are to have very great weight. Locke will argue that, beginning from the state of nature as a state of equal political jurisdiction, legitimate political authority can arise only by consent. This provides

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the root of his argument against royal absolutism: his idea is that a political authority of that kind could never arise by consent.

6. I conclude by remarking that Locke’s underlying thought throughout is that we belong to God as God’s property; that our rights and duties derive from God’s ownership of us, as well as from the purposes for which we are made, which purposes are for Locke clear and intelligible in the fundamental law of nature itself.

This deserves emphasis because Locke is often discussed apart from this religious background; and for much of the time I shall do the same. Today various views are called “Lockean” which actually have rather little connection with Locke. A view that stipulates various rights of property without the kind of derivation that Locke gives for them—as in Nozick’s in Anarchy, State and Utopia18—is often so described. Yet for Locke and his contemporaries this religious background is fundamental, and to neglect it is to risk seriously misunderstanding their thought. So I call your attention to it here.

Locke seems to have thought that those who do not believe in God, and who have no fear of God’s judgments and divine punishments, cannot be trusted: they are dangerous and liable to violate the laws of common reason that follow from the fundamental law of nature, and to take advantage of shifting circumstances as suits their interests.19

18.Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).

19.See Locke’s A Letter Concerning Toleration, ed. James H. Tully (Indianapolis: Hackett, 1983). Also on this point, see John Dunn, “The Concept of ‘Trust’ in the Politics of John Locke,” in Philosophy in History (Cambridge: Cambridge University Press, 1984), p. 294.

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