Professor Peter Myers, University of Wisconsin-Eau Claire
In the 1760s and early 1770s, the American colonists protested repeatedly to the British government that that government was in various ways violating their rights. To make their case, the colonists had to explain their understanding of rights, beginning with where their rights came from. The Americans began their appeals by contending that British actions toward the colonists were violations of rights conferred by the British constitutional order, but they soon saw the difficulty in that line of argument. If the colonists’ rights were created by the British government itself (i.e. by British statutory or constitutional laws), then it would seem to follow that the British government could also nullify those rights. Seeking firmer ground, the Americans then appealed to a higher law as the ultimate source of their rights–the law of nature. Ironically, their understanding of the law of nature and of the idea of natural rights traced largely to the thinking of the English political philosopher John Locke, a dissenter from the British governmental order of his own day.
Second Treatise of Government
Sect. 4: To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
Sec. 6: But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. 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 our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, 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.
Sec. 7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world ‘be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders.
Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.
Sec. 123. If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom?
A Summary View of the Rights of British America
… That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise, which is not due might be well from the venal, but would ill be seem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people. Open your breast, sire, to liberal and expanded thought. Let not the name of George the third be a blot in the page of history…. The great principles of right and wrong are legible to every reader…. The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them. This, sire, is our last, our determined resolution…”
The Farmer Refuted
The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.
The Declaration of Independence
July 4, 1776
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
- Locke refers first to the law of nature (secs. 4 & 6), then to natural rights (sec. 7). What is the order of priority between natural law and natural rights, according to Locke? Does law derive from rights, or vice-versa?
- Recall the discussion in a previous chapter about rights as properties. Locke says (sec. 6) that we have natural rights because we are God’s property (“his property, whose workmanship they are”), but he also seems to say we have rights because we are our own property (sec. 27, “a property in his own person”; also 123, and see sec. 44). What is the relation between the ideas of divine ownership and human self-ownership in Locke’s account of natural rights? Are these two distinct, possibly divergent arguments, or are they two complementary aspects of one coherent argument?
- Jefferson (Summary View) and Hamilton (Farmer Refuted) declare emphatically that natural rights are the rights of human nature. What qualities in human nature render us possessors of natural rights? What light do Locke’s references to a common human species and our possession of certain common “faculties” shed on this question? Could nonhuman animals have natural rights? Why or why not?
- There is another ambiguity in Locke’s account of natural rights that is not present in the shorter statements by Jefferson and Hamilton. Locke says, like Jefferson and Hamilton, that natural rights are the rights of human nature (sec. 6, because human beings share “in one community of nature”), but he also suggests that natural rights are the rights we possess in the state of nature. If natural rights are rights we possess in the state of nature, then are they not rights we possess in political society, i.e. after we leave the state of nature? If not, then are they not after all the rights of human nature?
- The preceding questions are closely related to the following question. It is commonly said, and rightly so, that because natural rights are not conferred by human government, they cannot justly be taken away by human government. The more interesting question, however, is whether we can give them away by our voluntary action. For some guidance in answering that question, consider not only the pertinent statement in the Declaration of Independence but also the following additional excerpts from Locke’s Second Treatise.
Second Treatise of Government
Sec. 135. Though the legislative … be the supreme power in every commonwealth; yet:
First, it is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for nobody can transfer to another more power than he has in himself…. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he does, or can give up to the commonwealth…
Sec. 149. ….And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject. For no man or society of men, having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; whenever anyone shall go about to bring them into such a slavish condition, they will always have a right to preserve, what they have not a power to part with; and to rid themselves of those, who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society.
Locke’s remarks in sections 135 and 149 of the Second Treatise (and comparable remarks in sections 23 and 168, as well as other sections) might seem to signify clear affirmations of the principle of unalienable natural rights. Students should consider, however, how those remarks can be reconciled with the following statement.
Sec. 139. …And to let us see, that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline. For the preservation of the army, and in it of the whole commonwealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them; but yet we see, that neither the sergeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier’s estate, or seize one jot of his goods; whom yet he can command anything, and hang for the least disobedience; because such a blind obedience is necessary to that end, which the commander has his power, viz., the preservation of the rest; but the disposing of his goods has nothing to do with it.
As students ponder how this statement in section 139 can be reconciled with the idea of unalienable rights, they should consider these questions in particular, perhaps among others:
- Locke says that the preservation of a society’s armed forces, and thus “of the whole commonwealth, requires absolute obedience to the command of every superior officer.” Do you believe this to be true? Why or why not?
- Can Locke’s statement be interpreted to mean that absolute obedience to superior military officers’ commands is required only where the individual soldier has judged the preservation of the whole commonwealth to be at stake, or must it mean that total obedience is required because only the superior officer has the right to make that judgment?
- Locke says it is justly death to disobey or dispute the most dangerous or unreasonable” commands, and he likewise says the superior officer can command anything. How can this be so? How can individuals who possess unalienable rights, including the right to life, delegate to any public officer the power to command literally anything?
- Locke begins this section by indicating that his discussion of military discipline is intended to illustrate the distinction between absolute power and arbitrary power. The implication is that the dangerous or unreasonable commands he goes on to describe represent instances of absolute power, but not arbitrary power. How can such commands not be arbitrary? Further, if they are not arbitrary, does Locke mean to suggest that individual soldiers or members of the commonwealth do retain the right to judge, and by implication to disobey, commands that really are arbitrary?