THE PURPOSE OF LAW: HOBBES AND LOCKE
INTRODUCTION
By what process do laws arise, and how do we ensure their utility to the commonwealth? It is this chief concern that Locke tackles in his Second Treatise of Government. In particular, Locke writes, "the end of law is not to abolish or restrain, but to preserve and enlarge freedom" (726). This idea, though seemingly paradoxical, fits into Locke's larger political theory, and it is his arguments that we examine in this paper. First, we will investigate the conception of law in a Lockeian lens, specifically through seeing how he seeks to perfect the state of nature, which we will find he defines as freedom, with laws. Subsequently, we will contrast Locke's ideas with the idea of "civil law" found in Thomas Hobbes's Leviathan. In the process, we will realize that while the process for motivating the necessity of law is similar, we end with radically different results: Locke sees laws as a way to perfect the inconveniences of the state of nature to enlarge mutual freedom, while Hobbes uses laws as a way to distance society from the warring undertones in the natural state, mitigating absolute freedom. In other words, while the state of nature is embraced by Locke, Hobbes strives for a commonwealth far removed from it.
LOCKE'S LAW AND NATURE
To understand why Locke's law leads to preserving and enlarging freedom, we should first investigate his conception of freedom itself. Indeed, Locke's state of nature is a "state of perfect freedom to order their actions…without asking leave, or depending upon the will of any other man" (713). He describes it "also [as a state] of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another" (713). Interpreting these rather dense ideas, we find that Locke interprets freedom as absolute independence and equality. This refreshed understanding of freedom is what he bases his state of nature on. Locke does not see freedom as "a liberty for every man to do what he lists," (726). In fact, he rejects such a notion with a simple hypothetical, "for who could be free, when every other man's humour might domineer over him?" (726). Rather, freedom is a "liberty…within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of any other, but freely follow his own" (726). Interpreting Locke's claim, we see that his freedom is the liberty not to do just anything, but rather to do anything without harming others.
How might we justify this distinction? Locke is careful in providing warrant for this argument: he seems to implicitly point fingers at Hobbes' more secular ideas when he justifies man's equality and independence as in service to the "omnipotent and infinitely wise Maker" (713). Locke writes, "[we are] all the servants of one sovereign master, sent into the world by his order, and about his business; [man] are his property" (713). By setting the sovereign Creator above all man, Locke can conclude there is to be no subordination among men, no authority to destroy one another, and no inferiority or superiority of ranks. Thus, in-built to the state of nature is the law of nature, stemming from theology, that there exists no ranking among man. From this idea, Locke performs a critical logical step: since man exists as God's property, our freedom must not be in sole self-preservation, which is a selfish inclination not in service of the Maker, but rather in "preservation of all mankind" (715) as part of our duty as God's property. This clever idea now constrains the definition of freedom from conventional thoughts of absolute, individualistic liberty (as Hobbes and others describe it to be), but freedom as a societal concept. Locke writes, "Every one, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not…take away or impair the life…of another" (714).
Now that we have established Lockes's idea of freedom is a basis for his state of nature, we may discover a serious objection: if Locke's idea of nature includes "preserving the rest of mankind," why and how do we enforce it? Locke concedes time and time again that self-preservation is inevitably guaranteed, but the preservation of others is a difficult ideal. He writes, "Self-love will make men partial to themselves… and on the other side, that ill-nature, passion, and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow" (713). Locke seems to implicitly accept that his conception of nature seems to require enforcement, but nature by definition exists independent of intervention. We must set this supposed oxymoron aside and accept this inconvenient premise as we look to Locke's proposed solution: enacting laws. He writes that it would "be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders" (715).
Indeed, for Locke, law exists to protect and perfect this state of nature, to guarantee that freedom of one does not infringe upon the freedom of another, to allow men to be more free and to restrict those who would seek otherwise. This is why Locke conceives the end of law not to abolish, but to enlarge freedom. For him, laws enacted by "civil government is the proper remedy for the inconveniences of the state of nature," (713) and those inconveniences arise when one injures another. Without reprimands, freedom could never continue in any steady state.
From this analysis, we see that Locke fashions the end of law as preserving freedom by first claiming that independent, equal freedom under God is the basic state of nature; following, we must fulfill our duties in service to the Creator by acting freely insofar as it does not infringe upon others' liberties; and finally, we enact laws to ensure that this freedom can be maximized for greatest mutual utility. Behind this overall conception is that Locke considers freedom at the societal level (preservation of all mankind) in addition to the individual (self-preservation). "Man's willing to join in society with others," and thereby agree to the corresponding laws is, "for the mutual preservation of their lives, liberties and estates" (745).
FROM LOCKE'S CONCEPTION OF LAW TO HOBBES'S
As we just learned, Locke's idea of law is inherent on his justification for mutual freedom; we will now examine Hobbes's state of nature to see that it seeks to inhibit total freedom, which Hobbes perceives to lead to war. First, we must realize that inherit to Locke's account is a viewpoint of nature justified by theological foundations. In contrast, Hobbes writes in Leviathan a description of a different, darker nature, one which he states man has "three principal causes of quarrel. First competition; secondly, diffidence; thirdly, glory" (619). Hobbes skips the idea of societal preservation Locke argues for in favor of a more believable truism: man's highest telos is self-preservation, above which there is nothing. In other words, human freedom does not operate at the level of the society; rather, it exists at the level of the individual. Hobbes then further establishes that, "Nature hath made men so equal, in the faculties of body, and mind…when all is reckoned together, the difference between man, and man, is not so considerable. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger of himself" (618). In other words, all men are equal in their natural state of struggle for self-preservation: the state of nature is the state of war.
Hobbes's ideas that man has the right to preserve himself and that most men are of equal ability have interesting consequences. Hobbes writes, "From this diffidence of one another, there is no way for any man to secure himself, so reasonable, as anticipation" (619). Prudence then dictates that striving for peace - or rather, striving to secure oneself from constant anxiety - necessarily means man relinquishing some power to a governing entity, or what he affectionately refers to as the head of the leviathan: the sovereign. Hobbes writes, "every man, ought to endeavor peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war" (621). The chief goal of the sovereign, then, is to curtail the tendency to regress towards war, and instead bring order. For Hobbes, this order is what he calls "civil law." Critically, we see here how Hobbes and Locke diverge: in defining freedom as absolute, Hobbes sees law as bringing order to the natural state, which is another way to say curtail the freedoms prevalent in said state.
Civil law is the Hobbesian answer to how to prevent returning to the state of war, and how to resolve the continual potential for conflict. It is the "subject, which the commonwealth hath commanded…for the distinction of right, and wrong…of what is contrary, and what is not contrary to rule" (667). Civil laws are the archetypal "rules" a society must follow, and the sovereign must write them in order to instantiate the laws of nature. Such a governing body is necessary, as for the rest of the society, "be they popular, or monarchical, there is no human wisdom can uphold them, longer than the jealousy lasteth of their potent neighbors" (666). Hobbes's idea of civil law is explicitly to grant power to the sovereign in order to bring order to the commonwealth, ensuring no return to the state of war, distancing society from its nature.
CONCLUSION: THE PURPOSE OF LAW FOR LOCKE AND HOBBES
In the above paragraphs, we discussed how the conceptions of "law" manifest in Lockeian and Hobbesian frameworks. We now note that the processes themselves were intriguingly similar: both theorists began with an underlying stipulation on the definition of the state of nature; subsequently, they made claims on how a formalized law would give rise to governance that responds to said state of nature. As a result, the explanation for the radical divergence in the conception of laws has to be explained in starting points: how Locke and Hobbes viewed the state of nature differently. For Locke, nature is an equal state of mutual relative freedom. As a result, the "end of law" is to preserve this freedom, so legislators are tasked with "perfecting, what is for the good of the society, wherein the legislative consists." (768). The purpose of a law then is to perfect the freedom that one is afforded in the state of nature, to abolish or restrain those that would harm that freedom. Meanwhile, for Hobbes, nature is a violent and threatening place of war that needs governance to ensure peace. Subsequently, while for Locke, laws are mechanisms to perfect the natural state, Hobbes seeks civil laws to contest the warring barbarianism that accompanies the state of nature. Overall, we see that the difference in motivation for having laws is not so much in laws per se, but rather in Hobbes' and Lockes' fundamental divergence on what man's natural state is: freedom for the self, for freedom for the collective.