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The Basis of the Natural Law in Locke's Philosophy

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The Basis of the Natural Law in Locke's Philosophy The Catholic Lawyer Volume 10 Number 1 Volume 10, Winter 1964, Number 1 Article 6 The Basis of the Natural Law in Locke's Philosophy James W. Byrne Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl Part of the Catholic Studies Commons, and the Natural Law Commons This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. THE BASIS OF THE NATURAL LAW IN LOCKE'S PHILOSOPHY JAMES W. BYRNE* T HE QUESTION of the basis of "the law of nature" in Locke's philosophy is a relevant inquiry in view of the ambivalence which begins to appear in his later works which deal with morality. In the "early essays on the law of nature" the basis for the law of nature was a rationalistic one, that is, law was the proximate basis of moral obligation. It was called a natural law because it was thought that this law could be discovered by using the faculty of reason. In this way the will of God which Locke thought of as the ultimate basis of moral obligation was made known to man in a natural way. Thus, in the early essays Locke described the law of nature "as being the decree of the divine will discernible by the light of nature and indicating what is and what is not in conformity with rational nature, and for this very reason commending or prohibiting."' But as Locke continued the epistemological inquiries in the Essay which he had begun in these early essays, certain antinomies began to appear which require a careful analysis before the true basis of the law of nature, as the conclusion of his mature reflections on the epistemological ques- tions of the Essay itself, can be determined. It will be the work of this article to attempt to point out the real basis of the law of nature in the light of the conclusions of the Essay, and to show what these conclusions really meant to Locke's moral philosophy. In order to establish the basis for Locke's doctrine of the law of nature in the light of the metaphysical principles inherent in the Essay Concern- ing Human Understanding, it will be necessary for clarity's sake to set forth in a summary way Locke's doctrine of law and to compare it with the classical definition of law. St. Thomas Aquinas gave expression to *Ph.D., Fordham University; Associate Professor of Philosophy, St. John's University. L LOCKE, ESSAYS ON THE LAW OF NATURE 111 (von Leyden ed. 1954). 10 CATHOLIC LAWYER, WINTER 1964 the classical definition of law when he de- and the fact that the superior who com- fined it as "nothing else than an ordinance mands has a right and power over us makes of reason for the common good, made by the law, that is, the will of such a superior him who has care of the community, and binding. promulgated.' 2 Thus, the traditional mean- Law is at the heart of Locke's theory of ing of law was something pertaining to rea- civil society. According to Locke, civil gov- son. "Since reason is the universal rule and ernment originated because of the need for measure of action law then becomes an a set of laws to govern society in order to 3 obligation prescribed by reason.' preserve man's natural right to property." Locke, on the other hand, departed from However, for Locke law was essentially a this tradition by adopting the Nominalist branch of ethics, and in their essence laws solution regarding the essence of law, that were moral rules." Furthermore, because of is, a voluntarist theory or a legislative Locke's voluntaristic conception of law, the ethics.4 This voluntarist solution with regard traditional distinction between the eternal to law began with William of Occam, who and the temporal law had no meaning. was an extreme voluntarist of the fourteenth Rather, since law is that which is set up by century. For Occam law is will, 5 and reason an authority for the measure of conduct and can never know a law by knowing the nature expresses the will of such an authority, all of things. Thus, God's will could be known laws seem to be positive law.' 0 According only through revelation, and all law is posi- to Locke rules of morality, which included tive law. rules of law, were distinguished from other For Locke law is the will of a superior, or rules because they were enforced or were of one who has the right of commanding associated with rewards and punishments. obedience; "it is the decree of a superior In the Essay Locke maintained that the will, wherein the formal cause of a law rules or laws to which men generally refer appears to consist. ."' The proper func- their actions in order to judge their morality tion of law is to legislate, that is, "it lays fall into three classes; the divine law, the down what is and is not to be done.. .. "7 civil law, and the law of opinion or reputa- tion. 2 AQUINAS, SUMMA THEOLOGICA, 1-I1, q. 90, art. 4. The divine law is the will of the creator, St. Thomas' definition has been chosen as repre- which can be promulgated by the light of sentative of the classical definition, because as Huntington Cairns states: "St. Thomas' legal writ- nature, and then it is called the law of na- ings are more than the working out of a jurispru- ture, or by revelation, and then it is known dence adjusted to the thirteenth-century thinking. They are also an epitome of the major juristic prin- ciples which had come down to him tested by all 8 "The great and chief end, therefore, of men's the resources of Scholasticism." CAIRNS, LEGAL uniting into commonwealth, and putting them- PHILOSOPHY FROM PLATO TO HEGEL 175 (1949). selves under government, is the preservation of 3 CAIRNS, op. cit. supra note 2, at 169. their property, to which in the state of nature there 4 LOCKE, op. cit. supra note 1, at 51. are many things wanting." LOCKE, THE SECOND 5 For example, the will of the sovereign is law. TREATISE OF GOVERNMENT 71 (Peardon ed. 1952). "This latter idea is an inheritance from the Byzan- 9 1 LOCKE, AN ESSAY CONCERNING HUMAN UNDER- tine period of Roman law...." CAIRNS, Op. cit. STANDING 474 (Fraser ed. 1959); cf. CAIRNS, op. cit. supra note 2, at 169. supra note 2, at 166-67. 6 LOCKE, op. cit. supra note 1, at 111-13. 10 ROMMEN, THE NATURAL LAW 41 (Hanley ed. 7 Id. at 113. 1947). LOCKE'S PHILOSOPHY as divine positive law.11 By divine law nature is prior to civil society and it is this Locke meant the law which God has set to law which determines which rights are to be the actions of men. Locke thought that it donated to the State, and whether laws are was clear to all men that God has given a just. rule whereby men should govern their ac- The third class of laws to which men con- tions, and that God has promulgated this form their actions, and by which they judge law. God has dominion over his creatures, of the moral rectitude of their actions is the and therefore as a superior being he has the law of opinion or reputation. This type of right to legislate for them. By his goodness law refers only to what custom in a certain and wisdom God directs creatures to what is time and place has praised as virtuous or best for them, and furthermore God has the condemned as vice.' 5 The popular test of the power to enforce his law by reward and morality of an action is connected with com- punishment. Finally, Locke maintained that mendation and disgrace in the eyes of the the only true standard of moral rectitude is members of the society in which a man lives. a comparison of human actions with God's However, Locke maintained that the law of law. By this comparison men can judge their opinion or reputation varies according to actions morally good or evil, that is, whether, the place and in the various epochs of his- as duties or sins, they are likely to procure tory. Nevertheless, he rejected the charge them happiness or misery from the hands of that he makes public opinion the ultimate the Almighty.1 2 Law is the standard by nature of right or wrong, but it is the test which men judge the moral rectitude or de- that the majority of men use as a standard pravity of their actions, and the true nature of morality. Rather, Locke himself believed of law is that some reward or punishment is annexed to the performance of an action. Civil law is "the rule set by the common- wherein the majority have a right to act and con- clude the rest." Ci. "For when any number of men wealth to the actions of those who belong to have, by the consent of every individual, made a it," and "is another rule to which men refer community, they have thereby made that commu- their actions; to judge whether they be crim- nity one body, with a power to act as one body, inal or no."' 13 The civil law is the expression which is only by the will and determination of the majority ..." Ibid.
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