46. Throughout these statements we are moving in a region of fiction from which Spinoza keeps clear. Not only is the supposition of the devolution of wills or powers on a sovereign by a covenant historically a fiction (about that no more need be said); the notion of an obligation to observe this covenant, as distinct from a compulsion, is inconsistent with the supposition that there is no right other than power prior to the act by which the sovereign power is established. If there is no such right antecedent to the establishment of the sovereign power, neither can there be any after its establishment except in the sense of a power on the part of individuals which the sovereign power enables them to exercise. This power, or 'jus civile,' cannot itself belong to the sovereign, who enables individuals to exercise it. The only right which can belong to the sovereign is the 'jus naturale,' [1] consisting in the superiority of his power, and this right must be measured by the inability of the subjects to resist. If they can resist, the right has disappeared. In a successful resistance, then, to an ostensibly sovereign power, there can on the given supposition be no wrong done to that power. To say that there is, would be a contradiction in terms. Is such resistance, then, a violation of the 'jus civile' as between the several subject citizens? In the absence of a sovereign power, no doubt, the 'jus civile' (according to the view in question, which makes it depend on the existence of an 'imperium') would cease to exist. But then a successful resistance would simply show that there was no longer such a sovereign power. It would not itself be a violation of 'jus civile,' but simply a proof that the conditions of 'jus civile' were no longer present. It might at the same time be a step to re-establishing them if, besides being a proof that the old 'imperium' no longer exists, it implied such a combination of powers as suffices to establish a new one.

[1] 'The 'jus naturale' is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say of his own life; and consequently of doing anything which in his own judgment and reason he shall conceive to be the aptest means thereunto.' (Lev., I. 14.)

47. No obligation, then, as distinct from compulsion, to submit to an ostensibly sovereign power can consistently be founded on a theory according to which right either = simple power, or only differs from it, in the form of 'jus civile,' through being a power which an 'imperium' enables individuals to exercise as against each other. Hobbes could not, indeed, have made out his doctrine (of the absolute submission to the sovereign) with any plausibility, if he had stated with the explicitness of Spinoza that 'jus naturale' = 'naturalis potentia.' That it is so is implied in the account of the state of things preceding the establishment of sovereignty as one of 'bellum omnium contra omnes'; for where there is no recognition of a common good, there can be no right in any other sense than power. But where there are no rights but natural power, no obligatory covenant can be made. In order, however, to get a sovereignty, to which there is a perpetual obligation of submission, Hobbes has to suppose a covenant of all with all, preceding the establishment of sovereignty, and to the observance of which, therefore, there cannot be an obligation in the sense that the sovereign punishes for the non-observance (the obligation corresponding to 'jus civile' in Spinoza's sense), but which no one can ever be entitled to break. As the obligatoriness of this covenant, then, cannot be derived from the sovereignty which is established through it, Hobbes has to ascribe it to a 'law of nature' which enjoins 'that men perform their covenants made' (Lev., I. 15). Yet in the immediate sequel of this passage he says expressly, 'The nature of justice consisteth in the keeping of valid covenants, but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them; and then it is also that propriety begins.' On this principle the covenant by which a civil power is for the first time constituted cannot be a valid covenant. The men making it are not in a position to make a valid covenant at all. The 'law of nature,' to which alone Hobbes can appeal according to his principles, as the source of the obligatoriness of the covenant of all with all, he defines as a 'precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life, or taketh away the means of preserving the same; and to omit that by which he thinketh it may best be preserved' (I. 14). When a law of nature, however, is said to command or forbid, we must not understand those terms in that sense which, according to Hobbes, could only be derived from the establishment of an 'imperium.' This 'law of nature,' therefore, is merely an expression in a general form of the instinct by which, as Spinoza says, every living creature 'in suo esse perseverare conatur,' as guided by a calculation of consequences (for no meaning but this can be given to 'reason' according to Hobbes). The prohibition, then, by this law of nature of a breach of that covenant of all with all, by which a sovereign power is supposed to be established, can properly mean nothing more than that it is everyone's interest to adhere to it. This, however, could only be a conditional prohibition, conditional, in particular, on the way in which the sovereign power is exercised. Hobbes tries to show that it must always be for the advantage of all to obey it, because not to do so is to return to the state of universal war; but a successful resistance to it must be ipso facto an establishment of a new combined power which prevents the 'bellum omnium contra omnes' from returning. At any rate, an obligation to submit to the established 'imperium,' measured by the self-interest of each in doing so, is quite a different thing from the obligation which Hobbes describes in terms only appropriate (according to his own showing) to contracts between individuals enforced by a sovereign power.

48. It would seem that Hobbes' desire to prove all resistance to established sovereignty unjustifiable leads him to combine inconsistent doctrines. He adopts the notion that men are 'natura hostes,' that 'jus naturale' = mere power, because it illustrates the benefit to man's estate derived from the establishment of a supreme power and the effects of the subversion of such power once established, which he assumes to be equivalent to a return to a state of nature. But this notion does not justify the view that a rebellion, which is strong enough to succeed, is wrong. For this purpose he has to resort to the representation of the sovereign as having a right distinct from power, founded on a contract of all with all, by which sovereignty is established. This representation is quite alien to Spinoza, with whom sovereignty arises, it is true, when 'plures in unum conveniunt,' but in the sense of combining their powers, not of contracting. But after all, the fiction of this contract will not serve the purpose which Hobbes wants it to serve. The sovereignty established by the contract can only have a natural right to be maintained inviolate, for all other right presupposes it, and cannot be presupposed by it. If this natural right means mere power, then upon a successful rebellion it disappears. If it means anything else it must mean that there are natural rights of men, other than their mere power, which are violated by its subversion. But if there are such rights, there must equally be a possibility of collision between the sovereign power and these natural rights, which would justify a resistance to it.

49. It may be asked whether it is worth while to examine the internal consistency of a theory which turns upon what is admitted to be historically a fiction, the supposition of a contract of all with all. There are fictions and fictions however. The supposition that some event took place which as a matter of history did not take place may be a way of conveying an essentially true conception of some moral relation of man. The great objection to the representation of the right of a sovereign power over subjects, and the rights of individuals which are enforced by this 'imperium,' as having arisen out of a contract of all with all, is that it conveys a false notion of rights. It is not merely that the possibility of such a contract being made presupposes just that state of things—a régime of recognised and enforced obligations—which it is assumed to account for. Since those who contract must already have rights, the representation of society with its obligations as formed by contract implies that individuals have certain rights, independently of society and of their functions as members of a society, which they bring with them to the transaction. But such rights abstracted from social function and recognition could only be powers, or (according to Hobbes' definition) liberties to use powers, which comes to the same; i.e. they would not be rights at all; and from no combination or devolution of them could any right in the proper sense, anything more than a combined power, arise.

50. Thus the only logical development of that separation of right from social duty which is implied in the doctrine of 'social contract' is that of Spinoza. Happily the doctrine has not been logically developed by those whose way of thinking has been affected by it. The reduction of political right—the right of the state over its subjects—to superior power, has not been popularly accepted, though the general conception of national right seems pretty much to identify it with power. Among the enlightened, indeed, there has of late appeared a tendency to adopt a theory very like that of Spinoza, without the higher elements which we noticed in Spinoza; to consider all right as a power attained in that 'struggle for existence' to which human 'progress' is reduced. But for one person, who, as a matter of speculation, considers the right of society over him to be a disguised might, there are thousands who, as a matter of practice, regard their own right as independent of that correlation to duty without which it is merely a might. The popular effect of the notion that the individual brings with him into society certain rights which he does not derive from society,—which are other than claims to fulfil freely (i.e. for their own sake) certain functions towards society,—is seen in the inveterate irreverence of the individual towards the state, in the assumption that he has rights against society irrespectively of his fulfilment of any duties to society, that all 'powers that be' are restraints upon his natural freedom which he may rightly defy as far as he safely can.

D. LOCKE.

51. It was chiefly Rousseau who gave that cast to the doctrine of the origin of political obligation in contract, in which it best lends itself to the assertion of rights apart from duties on the part of individuals, in opposition to the counter-fallacy which claims rights for the state irrespectively of its fulfilment of its function as securing the rights of individuals. It is probably true that the Contrat Social had great effect on the founders of American independence, an effect which appears in the terms of the Declaration of Independence and in preambles to the constitutions of some of the original American states. But the essential ideas of Rousseau are to be found in Locke's Treatise of Civil Government, which was probably well known in America for half a century before Rousseau was heard of. [1] Locke again constantly appeals to Hooker's first book on Ecclesiastical Polity,[2] and Grotius[3] argues in exactly the same strain.

Hooker, Grotius, Hobbes, Locke, and Rousseau only differ in their application of the same conception; viz. that men live first in a state of nature, subject to a law of nature, also called the law of reason; that in this state they are in some sense free and equal; that 'finding many inconveniences' in it they covenant with each other to establish a government—a covenant which they are bound by the 'law of nature' to observe—and that out of this covenant the obligation of submission to the 'powers that be' arises. Spinoza alone takes a different line: he does not question the state of nature or the origin of government in a combination of men who find the state of nature 'inconvenient'; but he regards this combination as one of powers directed to a common end, and constituting superior force, not as a covenant which men are bound by the law of nature to observe.

[1] Locke, Civil Government, chap. vii. sec. 87. 'Man, being born with a title to perfect freedom, and an uncontrolled enjoyment of all the rights and privileges of the law of nature, equally with any other man or number of men in the world, hath by nature a power not only to preserve his life, liberty, and estate against … other men; but to judge of and punish the breaches of that law in others…. There, and there only, is political society where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it.'