Modern natural law: State(s) of nature and arguments against dehumanization

No serious discussion of the laws of nature after Montaigne could afford to avoid engagement with these propositions. As a further consequence, the very understanding of natural law underwent an important transformation: the response to skepticism included the incorporation of some of its central tenets into the study of natural law (see Tuck 1993). The contemplation of the overwhelming inconsistency of cultural behavior across the widening space known to Europeans led to the questioning of the idea of primary and universally binding laws of nature. The 17,h-century classics, from Hugo Grotius (1583—1645) through Thomas Hobbes (1588—1679) to Samuel von Pufendorf (1632—1694) and John Locke (1632-1704), continued to believe in such laws, but for them they were not metaphysically given.The evident, empirically ascertained centrality of self-interest to human nature led them to assert that self-preservation—the minimal expression of self-interest, justifiable in all circumstances—must be acknowledged as a universal natural right, and universal laws of nature guiding human conduct exist in so far as they proceed from the obligation to mutually recognize this right in one another.4

The point of contact with what has been advanced about the historicization of nature and the naturalization of man, above, is that on these grounds it was meaningful to distinguish more clearly than in earlier contributions to the tradition an initial natural state of mankind from a subsequent civil state. Even in the state of nature, individuals were obliged to seek peace as long as there was a chance to obtain it. However, once this did not seem viable, so that they felt their security under threat, it was legitimate for them to resort to violence to defend themselves. Especially in the case of Hobbes, the exploration of this theme was firmly anchored in a thorough analysis, in the style of the new science and in conversation with its practitioners, of the faculties that ought to have enabled humans to attain full certainty of judgment regarding situations of insecurity of life and limb (Hobbes 1981: 85—99; cf. Pufendorf 1991: 17—26). Given the combination of the facts that these faculties were not wholly reliable and that in the state of nature individuals were indeed the sole judges of such situations as they affected them, that state was one of ubiquitous conflict over resources and of general instability (Hobbes 1981: 183—188; cf.

Locke 1988:269—278; cf. Pufendorf 1991: 46—55). In the state of civil society—into which individuals, recognizing the inconvenience of the state of nature transfer themselves by voluntary agreement about the abandonment of their freedom to execute the laws of nature—order and mutual security is provided by the translation of the laws of nature into positive laws specific to the particular community, and by submission to a mutually accepted public authority wielding the monopoly of defining and sanctioning types of behavior that constitute a threat to mutual safety, thus invested with the power of making and executing the laws (Hobbes 1981: 223—239; Locke 1988: 330—351). Seventeenth-century natural law thus fully embraced temporality and integrated as one of its organizing concepts the notion of progress over a historical continuum from one state or stage to the other, and remained a strong inspiration for much further reflection along the same lines in other fields.

Perhaps nowhere do these threads intersect so succinctly yet poignantly as in a well-known clause in the second of John Lockes Two Treatises of Government (1689): “in the beginning the whole world was America” (Locke 1988:301). However, Hobbes also accounted for the “brutish manner” in which the “savage people in many places of America” lived with reference to the rudimentary form of government among them (Hobbes 1981:187),and illustrated his analysis of the “natural condition of mankind” with examples from the opening chapters of the Genesis, and from the life of Amerindians and the savage ancestors of civilized nations (Evrigenis 2014: ch. 7). In a related passage, Locke highlighted the retardation of American development by pointing to the lack of cultivation of its potentially rich lands, anticipating Adam Smith’s explanation of the advantages of the division of labor: “a King of a large and fruitful Territory there feeds, lodges, and is clad worse than a day Labourer in England” (Locke 1988: 296—7; cf. Smith 1981: 24). Locke’s classic defense of constitutional government and civil liberty in the later sections of the Second Treatise was firmly established on, among many other things, a philosophical history of the rise of private property through appropriation from common enjoyment via “mixing one’s labor” with the things of nature (Locke 1988:288,296).

Taken together, these assertions have often been interpreted and effectively used as a justification of English colonial ventures by implying that in consequence of their “idleness” Native Americans and Indigenous peoples of Australia forfeited their right to the lands they inhabited, to the advantage of industrious settlers. In fact, as a member of administrative bodies overseeing colonial affairs, Locke rather turned the argument to the critique of idle colonists (cf. Arneil 1996; Farr 2008). However, in the Two Treatises the thrust of his argument was that improvement—as emergence from the “[Native] American” condition—began and status distinctions among men arose already in the pre-civil state, and the voluntary transfer into civil (political) society was explained by him precisely with reference to the widely shared desire of preserving mens “lives, liberties, and estates” (the latter term denoting both status and property) and the consequent willingness to suppress the passion of pursuing self-interest in the hope of a greater good. It was primarily thanks to the, however rudimentary, analysis of the civilizing process of conquering the violent passions and submitting them to rational control necessary for arriving at the decision of entering political society that 17th-century students of natural law went beyond their predecessors in infusing it with a historical dynamics. Especially Locke and Pufendorf among them did not cease to appreciate man’s inherent sociable drive. But for a full account of sociability, and more widely of the human capacity of “elevation” above mere animal instinct, they were willing and able to rely on an ingenious analysis of the operation, including the full spectrum of cognitive-psychological consequences, of the natural and self-regarding urge of seeking the satisfaction of bodily and other needs.

These initiatives supplied a great deal of social and moral philosophical depth to the explanation of human difference as a matter of “virtual time” emerging in the literature launched and hallmarked by figures like Las Casas and Acosta, on which 17th century natural jurisprudence relied heavily for its empirical underpinnings. Among the authors of this tradition, Locke was also distinguished by the fact that an emphasis on the lack of a consistent pattern in moral views across mankind also permeated his epistemology (Carey 2006: 34-68). In An Essay Concerning Human Understanding (1690), Locke put forward a comprehensive criticism of the notion of innate ideas as identical principles implanted in and “born” with every human individual, and famously asserted that the mind is a “blank sheet of paper” on which ideas arise in response to experience and sense perception. The cornerstone of Lockes argument in support of these claims was a kind of common sense empiricism. For a principle to claim innate status, he insisted that it must be shown to enjoy universal agreement among all sensible men, without a single exception. Besides offering a critique of the various accounts of how innate ideas arise (whether spontaneously with the acquisition of reason, or through consent upon their first presentation [Locke 1975: 48-49]), Locke referred to the unfathomable dimensions of actually existing moral diversity among human communities. Different societies, he pointed out, reconcile very disparate actions with words like justice, reverence, and so on (Locke 1975: 84—85). What is more, the sources in which this is documented relate to “primitive” peoples as well as to “polite” ones: just like the former, some of those classified among the latter are also marked by disturbing practices, ranging from the murder of children and aging parents through cannibalism to revenge—so that these are not to be written oft as customs of mere barbarians and savages.The ultimate tests were the idea of God and the idea that the Deity should be worshipped (Locke 1975:87), which were regarded as innate by representatives of the rival tradition (in Lockes time, e.g., the Cambridge Platonists). Locke challenged the innateness of these ideas with reference not only to accounts of “savage” societies (such as the Tupinamba of Brazil, or other “whole nations” at the Cape of Good Hope),but also lettered societies (like Siam and China), which demonstrated that not only immoralists and lawbreakers but entire peoples engaged in such “transgression” (Locke 1975:87). He argued that if God had intended to endow man with innate ideas, he would have begun with the notion of himself, and the “generally allowed breach” of this supposedly fundamental principle was a proof against innateness.

The relevance of these propositions to the problem of “mankind” as a distinct and unitary category, and to dehumanization, is put into sharp relief by the controversies which they elicited. One of Lockes critics, Edward Stillingfleet (1635—1699), bishop of Worcester, objected that Lockes account of indigenous peoples (in this case, the inhabitants of “Soldania”; i.e., Saldanha Bay in South Africa, mentioned in the first edition of the Two Treatises, cf. Locke 1988: 277n) “makes them not fit to be a standard for the Sense of Mankind, being a People so strangely bereft of common Sense, that they can hardly be reckoned among Mankind” (Stillingfleet 1697: 89—90; cf. Carey 2006: 59—60). Lockes response was unhesitating: “all the use I made of them was to show, that there were men in the world that had no innate idea of God ... you go near denying those Cafers to be men: what else do these words signify?” (Locke 1722: 575). Locke was willing to acknowledge the existence of significant cultural differences, and on these grounds even hierarchies among various human groups, but his explorations of human nature both as a post-skeptical student of natural law and as an epistemologist led him to firmly reject a position which called the humanity of such groups, albeit in the lower echelons of this hierarchy, into question.

This was a somewhat ambiguous but highly important legacy. Besides the substantive aspects of inclusion versus exclusion in this exchange, the methodological implications are noteworthy: the debate between Stillingfleet and Locke highlights the central importance of the approach to choosing the criteria of the “human.” Stillingfleet, believing in the possibility of a stringent definition—the possession or lack of an (innate) idea of God—was led to a firm denial of human status to many whom Locke s position, recognizing the arbitrary, culturally determined nature of the standard, included in that category. In the latter perspective, skepticism as a philosophical position was intertwined with the method of natural history adopted by the Baconian adherents of the new science in the Royal Society. In the case of Locke, continuing in the tradition of Las Casas, Acosta, and others, flexibility in regard of the criteria allowed for a broad diversity within the overall category of“ the human” and for an explanation of variation with reference to cultural (and other kind of) environment.

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