Natural Law Roots of the Social Contract Tradition

The King’s Library, London / Wikimedia Commons

Lecture by Dr. Ian Shapiro / 01.15.2000
Sterling Professor of Political Science
Adjunct Law School Professor
Director, MacMillan Center
Yale University


Niccolò Machiavelli, 1469-1527 / Wikimedia Commons

We start by talking about the Enlightenment, and I want to offer one prefatory caution about any way of dividing up the history of ideas, any way of periodizing, if you like, the history of ideas, which is that there’s no single right way to do that, and indeed any way you do it obscures in some ways important things. So, for example, sometimes people divide up the history of Western political thought into the ancients and the moderns. And the ancients are thought to have certain characteristic preoccupations that change around sometime around the sixteenth century with Machiavelli, or in the seventeenth century with some of the folks we’re going to be talking about today, and so we get this picture presented that there’s a fundamental difference between ancients and moderns.

On the other hand, another way of dividing up the history of the tradition is between naturalists and anti-naturalists. So naturalists are people who think that understanding nature and understanding human nature is the key to political theorizing, whereas anti-naturalists look for something else, whether it’s God’s law or transcendental platonic forms or something like that. And so we can have a division of the tradition between naturalists who generally trace all the way back to Aristotle, and anti-naturalists who trace all the way back to Plato. It’s not that the distinction between naturalists and anti-naturalists is better or more accurate than the distinction between ancients and moderns; it’s just a different kind of distinction that highlights different features of these thinkers for different purposes.

So I just say that as a caution because now we’re focusing on the Enlightenment as a characteristic move in Western political thinking that really starts in the seventeenth century and comes into its own in the eighteenth century, but I don’t want you to reify that idea. These Enlightenment thinkers we’re talking about do in fact have important points of continuity with medieval and ancient thinkers, some of which will come up in our discussions. Nonetheless, I think it’s useful to focus on the Enlightenment as a distinctive term in Western political thinking, and that’s going to structure our discussion going forward.

And the first three traditions we’re going to consider in this course, namely utilitarianism, Marxism, and the social contract are all variants of Enlightenment thinking. But before we get into the nitty-gritty of those traditions, I want us today to take a step back and think more generally about what the Enlightenment was, what this Enlightenment move is that I’m pointing to as setting the outer philosophical boundaries of these first three traditions that we’re going to be considering starting next Wednesday.

And as I said in my introductory lecture, the Enlightenment really involves a twin commitment as far as politics is concerned, and that is first and foremost a commitment to science as the basis for theorizing about politics. A commitment to science rather than a commitment to tradition, or religion, or revelation, or anything else. Rather the idea was that science is going to provide the right answers for thinking about the correct political organization of society. And secondly, the core political value for Enlightenment thinkers is this notion of individual freedom to be operationalized or realized through a doctrine of the rights of the individual. We’ll see shortly that one of the distinctive moves of the seventeenth-century writers about politics is that they stopped talking so much about natural law and start instead to talk about natural rights, the rights of the individual to realize their purposes through politics.

And so the Enlightenment, as I said, revolves around this twin commitment to the idea of importance of science as the basis for theorizing, and the importance of individual freedoms realized through a doctrine of individual rights. And we’re going to use John Locke as a window into this early Enlightenment thinking, separately initially from his role as one of the early social contract theorists that we’ll be dealing with in a few weeks.

Science and the Early Enlightenment: John Locke (1632 to 1704)

John Locke, 1632-1704 / Wikimedia Commons

But first we’re going to focus on this idea of science. Now, let’s think about what science is, what it’s all about. I have three diagnostic questions here, and the reason I put them up will become plain in a second. It has to do with the fact that the early Enlightenment theorists, the seventeenth-century theorists, thought that the hallmark of genuine knowledge, the hallmark of science, was certainty. You might all have come across in one philosophy course or another, the famous Cartesian idea, Descartes’ idea. Anyone read Descartes who can tell us what he’s most famous for?

Systematic doubt. Why was he interested in doubting things? He was looking for absolute certainty; that the hallmark of genuine knowledge is certainty. So he was asking himself, “What is it that we can have certainty about?” And as you probably know, Descartes had his own answer to that question. What was it?

“I think, therefore I am.” Descartes thought this was a particular kind of proposition because the very act of trying to doubt it affirmed it. You couldn’t doubt it. And so that was what the early Enlightenment theorists were looking for. What is it that makes knowledge certain, puts it beyond doubt?

And so I’ve got up here three propositions, and we could say the sum of the interior angles of a triangle equals 180 degrees. How many people think that that proposition can be known with certainty? Yeah, a lot, I mean, how would you try and doubt it? You could measure one triangle, measure the next triangle, measure a third. After you had measured 5,604 triangles you’d start to say, “Hum, maybe there’s a theorem here. It’s not as if the next triangle I find is going to turn out not to add up to 180. It’s just not going to happen, right? We know, and that’s what we’ve come to refer to in modern philosophical thinking as a priori knowledge. It follows from the nature of the definitions, the nature of the terms that the propositional force can’t be doubted. So often we say a bachelor is an unmarried man. You’re not going to go and start looking at bachelor after bachelor to see if you can find a married bachelor. There’s no such thing as a married bachelor. So those propositions we tend to think of today as analytic propositions; they follow analytically from the definitions of the terms at issue, or in truths of mathematics. It seems there’s a theorem that tells you it must be the case that the sum of the interior angles of a triangle add up to 180 degrees.

The current best empirical understanding of earthquakes is that it’s the movement of tectonic plates, but science might advance. There might be changes in geology, which might lead us eventually to learn, “Well, yeah, some earthquakes result from tectonic plate movement, but other earthquakes might result from something else,” or we will learn that something moves the tectonic plates that we don’t currently know about. This is an ongoing process of empirical discovery, right? It’s not a proposition that follows from the nature of the terms, and these we call empirical propositions in modern philosophy of science. Sometimes they’re called, if you like the fancy Latin terminology, a posteriori as opposed to a priori. They’re not analytical propositions, right? They’re a result of observation and trying to figure out what the causes are behind those phenomena. So generally speaking they don’t have the same kind of force as analytic propositions.

What about this third one? Consent is the basis for political legitimacy. Anyone think that can be known with certainty? Nobody. I think that’s right. Most people would say, “Well, that’s a moral or normative judgment of some kind. Maybe people agree with it, maybe they don’t, but certainly it’s not a scientific proposition, at least not obviously a scientific proposition. Indeed, even if we took it just in a descriptive sense, not to mean consent should be the basis of political legitimacy, but as a descriptive matter about regimes, some people would say, “Well, maybe regimes are based on consent, but maybe some regimes are based on other things. Maybe they’re based on claims to divine authority. Maybe they’re based on utilitarianism.” We’re going to talk about that next week. So it seems even as a descriptive matter, never mind as a normative matter, this is not a scientific proposition in the way that causal statements about the world are scientific propositions, and certainly not in the way that analytical statements about the world can have scientific certainty.

So we could spend more time on this, and there are indeed nuances in modern conceptions of science that I haven’t gotten to that would paint a more complex picture of the differences among these three propositions, but what I want to draw your attention to now is that in the early Enlightenment, seventeenth-century thinkers about the nature of science, Descartes and his contemporaries, thought very differently about science, indeed. In the early Enlightenment they would have agreed that the sum of interior angles of a triangle equals 180 degrees is a proposition that can be known with certainty, but interestingly they would have put this claim here in the same category. They would have put this claim about consent in the same category with propositions about mathematics, propositions behind which there’s a theorem, as we just said when we were talking about triangles, and they would have relegated empirical and causal claims to an inferior status.

Now, you might think that is pretty weird. At least prima facie that seems pretty weird. And in order to get your mind into the world in which they lived you have to suspend disbelief for a moment about your concept of science and try to get your mind around early Enlightenment conceptions of science, which involved thinking very differently. And the reason is that early Enlightenment thinkers wouldn’t say that this is certain because of the meanings of the words, but rather it’s certain because there’s an act of will behind it.

Now, this may sound even weirder than anything I’ve said so far, but consider this passage here written by Thomas Hobbes, who is writing in the middle of the seventeenth century, in a minor piece that he wrote, Six Lessons for the Professors of Mathematics. This is not one of Hobbes’ major works, but I think it’s one of the most succinct descriptions I’ve ever seen of the early Enlightenment conception of science. He says, “Of [the] arts,” (which for him is a general term to capture knowledge) he says,

some are demonstrable, others are indemonstrable; and demonstrable are those the construction of the subject whereof is in the power of the artist himself, who, in his demonstration, does no more but to deduce the consequences of his own operation. The reason whereof is this, that the science of every subject is derived from a precognition of the causes, generation, and construction of the same; and consequently where the causes are known, there is a place for demonstration, but not where the causes are to seek for. Geometry therefore is demonstrable, for the lines and figures from which we reason are drawn and described by ourselves (we make the triangle); and civil philosophy is demonstrable, because we make the commonwealth ourselves.

Okay, so this is the key to this what seems like a very weird conception of political philosophy as equivalent to mathematics. “[C]ivil philosophy is demonstrable, because we make the commonwealth ourselves. But because of natural bodies we know not the construction, but seek it from the effects, there lies no demonstration of what the causes be we seek for, but only what they may be.”

“Only what they may be.” There’s not going to be certainty about earthquakes, about the causes of earthquakes. We can make probabilistic judgments. We can make empirical claims, but at the end of the day those claims are fallible, they’re corrigible, they might have to be revised in the face of future knowledge, and science is not going to ever reach to the level of certainty with propositions of that sort. And so this is why, going back to this, I did this ordering of these propositions on a Hobbesian view. These two are equivalent not because of anything about theorems or analytics, but rather because this will-centeredness. They’re the product of human conscious action. We make the triangle and we make the commonwealth, and so we have privileged access into what goes into that making, but we don’t make the planet. God made the planet and we can only observe the effects of earthquakes and then try and guess about their causes, right?

So when we come to John Locke, who is at one with Hobbes on this point about knowledge, the term I want to use to capture this early Enlightenment conception of science is the workmanship ideal, right? Rather than a priori or analytic knowledge we’re going to talk about knowledge in terms of this idea of workmanship, maker’s knowledge. And it’s important to realize that in its ultimate foundations, this is actually a theological proposition. Both for Hobbes, we’re going to leave Hobbes behind now because you didn’t read him and we’re going to focus on Locke, but as I said, they have the same view on this particular question.

So God has intimate knowledge of the universe because he created it, okay? And that is this idea that making is a source of knowledge, right? So God knows the causes of earthquakes because he made the earth. We don’t because we didn’t make the earth, but we can have God-like knowledge of what we create because God gave us the power to create things. So this is, in the first instance, a theological argument, okay? So we are like miniature gods with respect to what we create. We have the same kind of maker’s knowledge over what we create as God has over what he created. Now, there are some constraints on our kinds of knowing because we are also made by God, and I’m going to get to that in a minute. But what he did for human beings that he didn’t do for any other aspect of creation on Locke’s telling, is that he gave us this creative capacity. He gave us the capacity to behave like miniature gods in the world, and I’ll come back to that.

But I did want to alert you to the fact that for Locke this was actually something of a tormenting idea. We’ll hear a lot more about Locke later, but one of the most important things you need to remember about Locke is that he was a Thomist. He was a believing Christian theologian throughout his life. And there was a huge debate that had gone on actually for two centuries before Locke wrote among theologians, and this was the puzzle that they were worried about. The question was, “Can God change natural law?” If you said no, that would suggest that God is not omnipotent, but if you said yes, that would suggest that natural law is not a system of timeless universals, because if God could change natural law maybe he’ll choose to change it tomorrow.

And as we were talking about on Wednesday, remember when somebody asked me about legal positivism, I said that that was a doctrine that had rejected the idea of natural law. The idea of natural law was that there are some timeless universals that we can appeal to, to judge actual political institutions. So we can appeal to natural law in the context of the Eichmann problem we were discussing to say that Nazi Germany was an evil regime, right? We appeal to this higher natural law. Well, Locke had been concerned about this theological problem with natural law that if you say it’s a timeless universal that seems to undermine the idea of God’s omnipotence because God can’t be an all-powerful figure. But if on the other hand you say, well, God can change natural law then that undermines its possible universality.

And Locke struggled with this. If you become experts on the seventeenth century and you go back and read his essays on the law of nature written in the 1660s you’ll see him really torturing himself as to how to resolve this. He never really resolved it, but in the end he came down on what we’re going to call the command theory, the workmanship theory, the well-based theory that — he said, “We have to say that God is omnipotent and let the chips fall where they may for the timelessness of natural law.” He was never entirely comfortable with it, but he couldn’t let go of that proposition for reasons I’ve already alluded to; that he thought something couldn’t have the force of a law without being the product of a will. And so it’s God’s will that’s the basis of natural law in God’s case, and God’s knowledge of his creation is traced back to this idea of the workmanship ideal, maker’s knowledge. So God has maker’s knowledge of his creation.

We’re going to see two important other features, additional features of this workmanship ideal that I’m just going to mention now and then I’ll come back to. One is that it translates over also into normative considerations. That is to say, not only does God have workman’s knowledge, creator’s knowledge of what he creates, but he also owns what he creates. He has rights over his creation. We are God’s property because he created us. The world is God’s property. The universe is God’s property. You own what you make. God made everything, so ultimately God owns everything. And just as we can behave as miniature gods in understanding our creation, we can also behave as miniature gods in owning what we make. So we will see later this affects his theory of property and his theory of the state, because we’re going to have rights over the state which we create. We’re going to get to all of that later, okay?

But so it’s a unified theory, this workmanship ideal, that goes both to the question of knowledge and to the question of ownership, rights, entitlements, everything is traced back to this workmanship ideal. The second point that I’m just going to mention now and will come up later, it’ll come up most dramatically when we come to consider Marx, is that what gave Locke’s theory its internal coherence was that it was a theological argument. None of this really makes any sense unless you start from this proposition that God created the universe and has maker’s knowledge and maker’s authority over the universe. Everything flows from that. As I said, in Locke’s understanding he gave us this unique capacity to create as well, but we’re answerable to him in ways that’ll come up later. But none of this makes sense without the theological assumptions behind it.

One of the big projects of the Enlightenment which is going to concern us one way or another throughout the course is what happens if you try to secularize the workmanship ideal. That is to say, you’ll see in the labor theory of value that Marx embraces, which is at the core of his political theory, and modern social contract theorists like Nozick and Rawls and many others, what you’re going to find is that people want to hold onto this basic structure of thinking. People find this workmanship ideal intuitively very appealing, but they’re going to try and detach it from its theological moorings because they either don’t believe the theological argument for one reason or another, or they find it problematic, or they want to convince people that this idea that making creates ownership is powerful and important regardless of your religious convictions. And so one of the big challenges and projects of the Enlightenment is going to turn out to be: how, if at all, can we retain the structure of the workmanship ideal while shedding its theological foundations?

But that’s getting ahead of ourselves. So what I want the takeaway point for today to be is that this is the early Enlightenment conception of science. It’s a workmanship ideal that appeals to certainty, which was the Cartesian preoccupation and the Hobbesian preoccupation, but it does it in a different way. It doesn’t look for what we today think of as analytic propositions, rather it looks for propositions that can be known with certainty because we introspect into our own will and understand with certainty what we have created, okay?

Doctrine of Individual Rights

Photo by Michael Coghlan (Flickr/Creative Commons)

And now let’s start to transition to talking about individual rights, and we do this by moving from God’s knowledge of his creation to God’s ownership of his creation. Just to sum up this workmanship ideal, Locke says,

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 (I’ll come back to that): 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 during one another’s pleasure: and being furnished with 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 and creatures are for ours.

So this idea should give you a sense in which Locke’s theory of individual rights are basic and are rooted in the workmanship ideal. We are God’s creations. We are his property and that means, as he says here, we can’t be one another’s property. We can’t own one another.

You might say, “Well, don’t parents make their children? Don’t parents own their children?” and indeed, Sir Robert Filmer, who Locke was arguing against in the first treatise, took exactly the view that parents own their children. But Filmer had a very different conception of the theological foundations of the universe. Filmer, who was a defender of absolutism, Filmer said God gave the world to Adam and his heirs through a system of primogenitor or inheritance. And so there were a lot of folks running around in seventeenth-century England, for example, saying, “Well, if you pay me I can prove that you’re a closer descendent of Adam than the next guy.” This was the notion that the lineage to Adam was important, and indeed that the Kings and Queens of Europe got their political authority because they were the most direct living descendants of Adam and Eve. So it was this idea God gave the world to Adam, and he to his children, and children and children. And in absolutist thought they took very serious the idea that parents own their children and can indeed sell them into slavery or worse because they’re their property.

Locke says, “No, God makes the child and uses the parents as his instrument.” The parents simply act out an urge that’s implanted in them, but they can’t fashion the intricacies of the child. And, of course, they can’t put a soul in the child, so the child is God’s creation and we are all God’s creation, unlike the view developed by Filmer. And so when we think about the doctrine of individual rights the first thing to see is that this workmanship idea gives us a fundamental different status than anything that had existed before in Western political thinking. Because we are created by God, we are all equal in the sight of God, and we have the capacity to function as miniature gods because of this capacity to create things that we have, right?

Secondly we’re all equal before God. We’re equal, as he says here,

Whether we consider natural reason, which tells us that men being once born have a right to their preservation and consequently to meat and drink, and other such things as nature affords their subsistence: or revelation which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear that God, as king David says, has given the earth to the children of men; given it to mankind in common.

So we are all equally created by God. We all have the same rights to the common as everybody else and there’s no sense in which it’s Adam and his heirs that have — there’s no sense that Adam and his heirs have some kind of priority.

Thirdly, it’s very important for Locke, and a very radical move to say that there is no authoritative earthly interpreter of the scriptures. Anyone guess why I might say that? There may be ambiguities in what the scriptures mean, and one person says it means X and one person says it means Y. Okay, we have a volunteer over there. Why is it important for Locke to say that nobody on earth can settle those disagreements?

That person would set themselves up as being closer to the word of God being the interpreter of the word of God. “[E]very man ought sincerely to inquire into himself by meditation, study, search, and his own endeavors attain the knowledge of, cannot be looked upon as a peculiar…” I’m sorry. I’m misreading. “[Those things that] every man ought sincerely to inquire into himself, and by meditation, study, search, and his own endeavours attain knowledge of, cannot be looked upon as the peculiar possession of any sort of men.” I think a word has been dropped there, but the meaning of it is that authoritative knowledge can’t be the peculiar possession of any particular person.

“Princes, indeed, are superior to men in power, but in nature equal. Neither the right nor the art of ruling does necessary carry along with it the certain knowledge of other things and least of all of true religion. For if it were so, how could it come to pass that the lords of the earth should differ so vastly as they do in religious matters?” So political leaders differ with one another about religious matters, and that itself tells you that you can’t rely on anybody to settle them because nobody has more privileged access than anybody else to God’s knowledge.

So it’s the beginning of what we will later come to refer to as a Lutheran idea of the relationship between man and God, but the idea is that everyone must read the scriptures for themselves, and if God wants to speak to you he will speak through the scriptures, and if somebody else reads them differently, nobody on earth can settle that disagreement. Nobody has the right to settle that disagreement. Everybody must settle it for themself. And that’s going to turn out to be hugely important in politics because if people start to believe that the ruler of the society is violating natural law, there’s nobody who can say they don’t have the right to hold that belief. What it means they can do in practice is another matter that we’ll get to later.

So it’s going to provide the basis for the right to resist the authority of the state, the right to resist sovereign authority. When we think about the Eichmann problem again, then you are ordered to do something, to send people to a concentration camp, and you read the scriptures, and you say, “Well, my reading of the Bible tells me that this is wrong,” there is no earthly authority who has the right to contradict you. Tremendously important philosophical move with huge political consequences. Of course there was another consideration here. Who knows — it was not just the disagreements among the kings and queens of Europe, but who else might Locke have been thinking about in the 1680s not wanting to give authority to for interpreting the scriptures? Some history major, what was going on in England in the 1670s and ’80s, anybody know? Who were they worried about? Not just the different kings competing and authorities.

The Pope, of course. You will see when you come to read Locke’s letter on toleration that he has a very wide view of toleration, but he doesn’t think that Catholics should be tolerated. We’ll get to why later. But the reason here would be that the Pope sets himself up as the authoritative interpreter of the scripture and you can’t have that, okay? You have to have something like what we would call today a disestablished church.

And indeed that takes us to a fourth source of individual rights in Locke’s thinking, namely that every individual is sovereign.

The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force. […] And upon this ground, I affirm that the magistrate’s power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties, and penalties in this case are absolutely impertinent, because they’re not proper to convince the mind.

The state can control your behavior, but it can’t make you believe anything. And this is the source of his objection to any earthly authority being in the position to dictate what religion requires, whether it’s the king or the Pope, right? There is no authoritative interpretation of the scriptures in this world. Tremendously important move.

So just to summarize; we have this workmanship idea that informs the early Enlightenment conception of science. It’s preoccupied with certainty, and it’s rooted in this creationist theory of knowledge that we have workman’s knowledge of our workmanship. It also translates over into the theory of rights because just as we have workman’s knowledge of our creation we also have a workman’s authority over his creation. We own what we make just as we know what we make.

Secondly we own the right to the world’s — what he’s going to later call “the waste of God,” what’s given to mankind in common, just as little or as much as everybody else. There is nobody who has a prior claim on the property out there, the animals, the land; everything that’s in God’s creation. We all have the right to use it and nobody has the right to stop anybody else from using it, right? We didn’t make it so we don’t own it. God made it and he gave it to us in common. This is in contradiction of Filmer’s view that he gave it to Adam, and Adam’s heirs have inherited both the goods and property in the world and the political authority in the world directly from Adam. So it’s this basic idea that we have common rights to the creation that God has put before us.

Third, we have equal access to the word of God, and that’s really important because the word of God, or natural law is what binds all human beings. We’re all his creation and natural law is the expression of his will. We have to obey it, but what if we don’t agree about what it means? What if we don’t agree about what it means? That’s what the second treatise is about. We’re going to talk about that in a few weeks, right? But the important point here is the sovereign doesn’t have any right to declare what natural law means, or the magistrate to compel us to believe the received interpretation.

And finally each individual is sovereign over himself because “true and saving religion,” as he puts it, consists of “inward persuasion of the mind.” You can’t be made to believe things and it’s your authentic belief that something is the right answer, which is essential to its being the right answer. And this is going to supply the basis for the right to resist, the right to resist the authority of the state that is ultimately the right on which Locke’s political theory is constructed.

So this workmanship ideal informs the theory of knowledge and the theory of rights, and we’re going to see that it doesn’t go away. People try to secularize it, and we’re going to explore the ways in which that they do that at considerable length.  But they try to modify it as well, but it doesn’t go away. And you’ll see that one of the reasons it doesn’t go away is that problematic as it might be, and there are many problems with it, very few people are going to ever want to give it up entirely.