At the first glance, the question would seem sufficiently disposed of by saying that men never were in a state of nature; which is true in this sense, that mankind never formed a multitude of isolated individuals, or a promiscuous herd of men and women. A totally different solution supposes a state of nature; but which, whether it depicts it as a golden age or an age of barbarism, still contemplates mankind in this state as a mere congeries of individuals, without law, or else without the necessity of law—in either case an aggregate of isolated individuals, eventually to be brought into the state of civil society by a social compact.
Now my intention is not to combat this view—which at the present moment may be considered to be exploded—but to account for it.
I think that I shall do something towards clearing up this mystery by pointing out that this latter solution, although in great vogue with the publicists of the seventeenth and eighteenth centuries, is traced beyond them to the classical times, and was derived by them through the tradition of the Roman law from Paganism. A theory of the lawyers, and a theory of the philosophers, concreted with a true but distorted fact in tradition in order to produce this belief, viz., that society was founded by a contract among men who were originally equal.[18]
I shall in a subsequent chapter state to what extent I believe it to be true that society was founded upon a contract, and also the way in which this impression was confirmed, from the actual circumstances of the formation of the early communities of Greece and Italy; and I shall then examine the true tradition, such as I believe it to be, of a state of nature associated with the reminiscence of a golden age, as contrasted with the distinct yet parallel tradition of a state of nature identified with a state of barbarism (vide [ch. vii.] and [ch. xiii.])
This latter tradition I believe to have been a recollection of that period of temporary privation after the Flood, when mankind clung to the caverns and the mountains (vide [p. 137]), until, incited by the example of Noah, they were brought into the plains, and instructed in the arts of husbandry by the patriarch; and the notion of the primitive equality[19] of condition I believe to have originated in the Bacchanalian traditions of the same patriarch.[20]
If we start with a belief in the primitive equality of conditions, the only way out of the mesh is apparently by a theory of a compact.
“From the Roman law downwards,” says Sir G. C. Lewis, “there has been a strong tendency among jurists to deduce recognised rights and obligations from a supposed, but non-existing contract. When an express contract exists, the legal rights and duties which it creates are in general distinct and well-defined. Hence, in cases where it is wished that similar legal consequences should be drawn, which come within the spirit of the rules applicable to a contract, though they do not themselves involve any contract, the lawyer cuts the knot by saying that a contract is presumed, that there is a contract by intendment of law, that there are certain rights and obligations “quasi ex contractu.” Thus the Roman law held that a guardian was bound to his ward by a quasi contract.”—Sir G. C. Lewis, “On the Methods of Observation, &c, in Politics,” i. 423; “On the Social Compact,” pp. 424–431.
It is not difficult to see how such a fiction of the law would tend to give shape and system to the vague tradition as to the fact among the populace.
The way in which the philosopher came to his conclusion was somewhat more complex. It will have been seen that the notion of the state of nature and the social compact was, among the ancients, in the main, a figment of the imagination, and not a tradition. But there was also a tradition of a law of nature which did not at all correspond to a state of license, of equality, and of barbarism, such as the state of nature was conceived to be. It was, on the contrary, a law of decorum and restraint. What, then, the Roman probably meant by the law of nature was a reminiscence of a primitive revelation, or a tradition of the maxims of right and wrong by which men were guided in their relations to one another, when fresh from the hand of God—“a diis recentes”—when family life still subsisted, and before men had settled down into states and communities. It was not a law of nature as nature then was, but an aspiration after a lost rule of life, as after a higher standard, and an attempt to trace it back, through the corruption of mankind. Dim and uncertain as these notions were, they were not without their influence.
But their ideas as to the cosmogony were more shadowy still. When, then, in reasoning from a law of nature to a state of nature, mankind discovered that they knew or remembered nothing of their origin, or of the history of the human race, except indirectly through legendary lore, they then had recourse to the philosophers. These latter then did what philosophers incline to do in such cases of difficulty. They regarded the existing state of things, and finding it to be artificial, they, by a process of abstraction, resolved it into its elements, and, having thus reduced society into an assemblage of individuals, substituted their last analysis for the commencement of all things. In this analysis they found men, what historically and in fact they had never been, alike free, equal, and independent.