[2] 'Laws human, of what kind soever, are available by consent,' Hooker, Eccl. Pol. I. 10 (quoted by Locke, l.c. chap. xi. sec. 134). 'To be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.' Hooker; ibid.
[3] De jure belli et pacis, Proleg. secs. 15 and 16.
52. The common doctrine is so full of ambiguities that it readily lends itself to opposite applications. In the first place 'state of nature' may be understood in most different senses. The one idea common to all the writers who suppose such a state to have preceded that of civil society is a negative one. It was a state which was not one of political society, one in which there was no civil government; i.e. no supreme power, exercised by a single person or plurality of persons, which could compel obedience on the part of all members of a society, and was recognised as entitled to do so by them all, or by a sufficient number of them to secure general obedience. But was it one of society at all? Was it one in which men had no dealings with each other except in the way of one struggling to make another serve his will and to get for himself what the other had, or was it one in which there were ties of personal affection and common interest, and recognised obligations, between man and man? Evidently among those who spoke of a state of nature, there were very various and wavering conceptions on this point. They are apt to make an absolute opposition between the state of nature and the political state, and to represent men as having suddenly contracted themselves out of one into the other. Yet evidently the contract would have been impossible unless society in a form very like that distinctively called political had been in existence beforehand. If political society is to be supposed to have originated in a pact at all, the difference between it and the preceding state of nature cannot, with any plausibility, be held to have been much more than a difference between a society regulated by written law and officers with defined power and one regulated by customs and tacitly recognised authority.
53. Again, it was held that in a state of nature men were 'free and equal.' This is maintained by Hobbes as much as by the founders of American independence. But if freedom is to be understood in the sense in which most of these writers seem to understand it, as a power of executing, of giving effect to, one's will, the amount of freedom possessed in a state of nature, if that was a state of detachment and collision between individuals, must have been very small. Men must have been constantly thwarting each other, and (in the absence of that 'jus in naturam,' as Spinoza calls it, which combination gives) thwarted by powers of nature. In such a state those only could be free, in the sense supposed, who were not equal to the rest; who, in virtue of superior power, could use the rest. But whether we suppose an even balance of weaknesses, in subjection to the crushing forces of nature, or a dominion of few over many by means of superior strength, in such a state of nature no general pact would be possible. No equality in freedom is possible except for members of a society of whom each recognises a good of the whole which is also his own, and to which the free co-operation of all is necessary. But if such society is supposed in the state of nature—and otherwise the 'pact' establishing political society would be impossible—it is already in principle the same as political society.
54. It is not always certain whether the writers in question considered men to be actually free and equal in the state of nature, or only so according to the 'law of nature,' which might or might not be observed. (Hobbes represents the freedom and equality in the state of nature as actual, and this state as being for that reason 'bellum omnium contra omnes.') They all, however, implicitly assume a consciousness of the law of nature in the state of nature. It is thus not a law of nature in the sense in which we commonly use the term. It is not a law according to which the agents subject to it act necessarily but without consciousness of the law. It is a law of which the agent subject to it has a consciousness, but one according to which he may or may not act; i.e. one according to which he ought to act. It is from it that the obligation to submission to civil government, according to all these writers, is derived. But in regard to such a law, two questions have to be asked: firstly, how can the consciousness of obligation arise without recognition by the individual of claims on the part of others—social claims in some form or other—which may be opposed to his momentary inclinations? and secondly, given a society of men capable of such a consciousness of obligation, constituting a law according to which the members of the society are free and equal, in what does it differ from a political society? If these questions had been fairly considered, it must have been seen that the distinction between a political society and a state of nature, governed by such a law of nature, was untenable; that a state of things out of which political society could have arisen by compact, must have been one in which the individual regarded himself as a member of a society which has claims on him and on which he has claims, and that such society is already in principle a political society. But the ambiguity attending the conception of the law of nature prevented them from being considered. When the writers in question spoke of a law of nature, to which men in the state of nature were subject, they did not make it clear to themselves that this law, as understood by them, could not exist at all without there being some recognition or consciousness of it on the part of those subject to it. The designation of it as 'law of nature' or 'law of God' helped to disguise the fact that there was no imponent of it, in the sense in which a law is imposed on individuals by a political superior. In the absence of such an imponent, unless it is either a uniformity in the relations of natural events or an irresistible force—and it is not represented in either of these ways in juristic writings—it can only mean a recognition of obligation arising in the consciousness of the individual from his relations to society. But this not being clearly realised, it was possible to represent the law of nature as antecedent to the laws imposed by a political superior, without its being observed that this implied the antecedence of a condition of things in which the result supposed to be obtained through the formation of political society—the establishment, viz. of reciprocal claims to freedom and equality on the part of members of a society—already existed.
55. In fact, the condition of society in which it could properly be said to be governed by a law of nature, i.e. by an obligation of which there is no imponent but the consciousness of man, an obligation of which the breach is not punished by a political superior, is not antecedent to political society, but one which it gradually tends to produce. It is the radical fault of the theory which finds the origin of political society in compact, that it has to reverse the true process. To account for the possibility of the compact of all with all, it has to assume a society subject to a law of nature, prescribing the freedom and equality of all. But a society governed by such a law as a law of nature, i.e. with no imponent but man's consciousness, would have been one from which political society would have been a decline, one in which there could have been no motive to the establishment of civil government. Thus this theory must needs be false to itself in one of two ways. Either it is false to the conception of a law of nature, with its prescription of freedom and equality, as governing the state of things prior to the compact by which political society is established, only introducing the law of nature as the ground of the obligatoriness of that compact, but treating the state of nature as one of universal war in which no reciprocal claims of any sort were recognised, (so Hobbes); or just so far as it realises the conception of a society governed by a law of nature, as equivalent to that spontaneous recognition by each of the claims of all others, without which the covenant of all with all is in fact unaccountable, it does away with any appearance of necessity for the transition from the state of nature to that of political society and tends to represent the latter as a decline from the former. This result is seen in Rousseau; but to a great extent Rousseau had been anticipated by Locke. The broad differences between Locke and Hobbes in their development of the common doctrine, are (1) that Locke denies that the state of nature is a state of war, and (2) that Locke distinguishes the act by which political society is established from that by which the government, legislative and executive, is established, and is consequently able to distinguish the dissolution of the political society from the dissolution of the government (Civ. Gov. Chapter XIX. Sect. 211).
56. The 'state of nature' and the 'state of war' 'are so far distant as a state of peace, good-will, mutual assistance and preservation, and a state of enmity, malice, violence, and mutual destruction, are from one another. Men living together, according to reason, without a common superior on earth with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war' (Civ. Gov. III. Sect. 19). In the state of nature, however, when the state of war has once begun, there is not the same means of terminating it as in civil society.
The right of war may belong to a man, 'though he be in society and a fellow-subject,' when his person or property is in such immediate danger that it is impossible to appeal for relief to the common superior. 'But when the actual force is over, the state of war ceases between those that are in society … because there lies the remedy of appeal for the past injury and to prevent future harm.' In the state of nature, when the state of war has once begun, it continues until the aggressor offers peace and reparation. The state of war, though not proper to the state of nature, is a frequent incident of it, and to avoid it is one great reason of men's putting themselves into society (ib. Sect. 21). The state of nature is not one that is altogether over and done with. 'All rulers of independent governments all through the world are in a state of nature.' The members of one state in dealing with those of another are in a state of nature, and the law of nature alone binds them. 'For truth and keeping of faith belongs to men as men, and not as members of society' (Civ. Gov. II. Sect. 14). 'All men are naturally in that state and remain so till by their own consents they make themselves members of some politic society' (ib. Sect. 15).
57. The antithesis, as put above, between the state of nature and the state of war, can only be maintained on the supposition that the 'law of nature' is observed in a state of nature. Locke does not explicitly state that this is the case. If it were so, it would not appear how the state of war should arise in the state of nature. But he evidently thought of the state of nature as one in which men recognised the law of nature, though without fully observing it. He quotes with approval from Hooker language which implies that not only is the state of nature a state of equality, but that in it there is such consciousness of equality with each other on the part of men that they recognise the principle 'do as you would be done by' (Civ. Gov. II. Sect. 5). With Hobbes, in the supposed state of nature the 'law of nature' is emphatically not observed, and hence it is a state of war. As has been pointed out above, a 'law of nature' in the sense in which these writers use the term, as a law which obliges but yet has no imponent in the shape of a sovereign power, is, as Locke says (Sect. 136), 'nowhere to be found but in the minds of men'; it can only have its being in the consciousness of those subject to it. If therefore we are to suppose a state of nature in which such a law of nature exists, it is more consistent to conceive it in Locke's way than in that of Hobbes; more consistent to conceive it as one in which men recognise duties to each other than as a 'bellum omnium contra omnes.'
58. As to the second point, from his own conception of what men are in the state of nature, and of the ends for which they found political societies, Locke derives certain necessary limitations of what the supreme power in a commonwealth may rightfully do. The prime business of the political society, once formed, is to establish the legislative power. This is 'sacred and unalterable in the hands where the community have once placed it' (Civ. Gov. XI. Sect. 134); 'unalterable,' that is, as we gather from the sequel, by anything short of an act of the community which originally placed it in these hands. But as men in a state of nature have 'no arbitrary power' over each other (which must mean that according to the 'law of nature' they have no such power), so they cannot transfer any such power to the community nor it to the legislature. No legislature can have the right to destroy, enslave, or designedly impoverish the subjects. And as no legislature can be entitled to do anything which the individual in the state of nature would not by the law of nature be entitled to do, so its great business is to declare the law of nature in general terms and administer it by known authorised judges. The state of nature, Locke seemed to think, would have done very well, but for the inconvenience of every man being judge in his own case of what the law of nature requires. It is to remedy this inconvenience by establishing (1) a settled law, received by common consent, (2) a known and indifferent judge, (3) a power to enforce the decisions of such a judge, that political society is formed.