ΑΝΤΙΓΟΝΗ
οὐ γάρ τί μοι Ζεὺς ἦν ὁ κηρύξας τάδε,
οὐδ᾽ ἡ ξύνοικος τῶν κάτω θεῶν Δίκη
τοιούσδ᾽ ἐ ν ἀνθρώποισιν ὥρισεν νόμους·
οὐδὲ σθένειν τοσοῦτον ᾠόμην τὰ σὰ
κηρύγμαθ᾽, ὥστ᾽ ἄγραπτα κἀσφαλῆ θεῶν
νόμιμα δύνασθαι θνητὸν ὄνθ᾽ ὑπερδραμεῖν.
οὐ γάρ τι νῦν γε καχθές, ἀλλ᾽ ἀεί ποτε
ζῇ ταῦτα, κοὐδεὶς οἶδεν ἐξ ὅτου ᾽φάνη.Antigone
For me it was not Zeus who made that order.
Nor did that Justice who lives with the gods below
mark out such laws to hold among mankind.
Nor did I think your orders were so strong
that you, a mortal man, could overturn
the gods' unwritten and unfailing laws.
Not now, nor yesterday's, they always live,
and no one knows their origin in time.Sophocles, Antigone, Lines 450-457, Antigone speaking to King Creon of Thebes, who will execute her for performing the required sacred rites for her dead, rebel brother; translated by Elizabeth Wyckoff, Sophocles I, edited by David Grene and Richmond Lattimore, The Modern Library, 1942, 1954, p.202; Greek text, Sophocles, Oedipus the King, Oedipus at Colonus, Antigone, translated by F. Storr, Loeb Classical Library, Harvard University Press, 1912, 1981, p.348; color added; translation modified.
[Romans 2:14] For when gentiles [ἔθνη] who have not the law [τὰ μὴ νόμον ἔχοντα] do [ποιῶσιν] by nature [φύσει] what is of the law [τὰ τοῦ νόμου], even though they do not have the law, they are a law to themselves. [2:15] They show that the work of the law [τὸ ἔργον τοῦ νόμου -- Sanskrit
, karmadharmasya] is written [γραπτόν] in their hearts [ἐν ταῖς καρδίαις αὐτῶν].
...ostendo primo conditionem hominum extra societatem civilem, quam conditionem appellare liceat statum naturę, aliam non esse quam bellum omnium contra omnes; atque in eo bello jus esse omnibus in omnia.
I demonstrate, in the first place, that the state of men without civil society (which state we may properly call the state of nature) is nothing else but a mere war of all against all; and in that war all men have equal right unto all things.
Thomas Hobbes, De Cive, 1642, boldface added
Want of a common Judge with Authority, puts all Men in a State of Nature: Force without Right, upon a Man's Person, makes a State of War, both where there is and is not, a common Judge.
John Locke, The Second Treatise of Civil Government, §19
I am thoroughly convinced that Rousseau is as
great a Rascal...as every man here believes him to be.Adam Smith, in letter from Paris to David Hume
Now whoever wishes to set aside the purely moral consideration of human conduct, or to deny it, and to consider conduct merely according to its external effect and the result thereof, can certainly, with Hobbes, declare right and wrong to be conventional determinations arbitrarily assumed,
and thus not existing at all outside positive law; and we can never explain to him through external experience what does not belong to external experience. Hobbes characterizes his completely empirical way of thinking very remarkably by the fact that, in his book De Principiis Geometrarum, he denies the whole of really pure mathematics, and obstinately asserts that the point has extension and the line breadth. Yet we cannot show him a point without extension or a line without breadth; hence we can just as little explain to him the a priori nature of mathematics as the a priori nature of right, because he pays no heed to any knowledge that is not empirical.
Arthur Schopenhauer, The World as Will and Representation, Volume I, §62, p.342 [Dover Publications, 1966, E.F.J. Payne translation]
...der Könnende im großen Stil, der Schaffende wird möglicherweise ein Unwissender sein müssen, -- während andererseits zu wissenschaftlichen Entdeckungen nach der Art Darwin's eine gewisse Enge, Dürre und fleißige Sorglichkeit, kurz, etwas Englisches nicht übel disponiren mag. -- Vergesse man es zuletzst den Engländern nicht, daß sie schon Ein Mal mit ihrer tiefen Durchschnittlichkeit eine Gesammt-Depression des europäischen Geistes verursacht haben: Das, was man »die modernen Ideen« order »die Ideen des achtzehnten Jahrhunderts« oder auch »die französischen Ideen« nennt -- Das also, wogegen sich der deutsche Geist mit tiefem Ekel erhoben hat --, war englishen Ursprungs, daran ist nicht zu weifeln.
The one who knows how to do things in great style, the creator, may possibly have to be someone who is unknowing -- whereas on the other hand a certain narrowness, barrenness and diligent carefulness, in short, something English, may be well disposed to scientific discoveries of the Darwinian type. Let us not forget that we already owe to Englishmen a total depression of the European spirit, brought about by their profound mediocrity. What we now call "modern ideas" or "eighteenth century ideas" or "French ideas" -- everything, in other words, against which the German spirit has risen in deep disgust -- was of English origin. There can be no doubt about it.
Friedrich Nietzsche, Beyond Good and Evil, translated by Marianne Cowan, Henry Regnery Company, 1955, p.190, translation modified; Jenseits von Gut und Böse, Philipp Reclam, Stuttgart, 1988, p.175 [großen restored for grossen; fleißige for fleissige; and daß restored for dass], color added.
In the 17th and 18th century a common device in political philosophy was to reason in terms of the "state of nature." What this meant was to imagine human society as it was before there were states and governments. The question was usually what life was like in such conditions and then how and why there was or would be a transition from it to the arrangements we see now. Often the origin of organized society was conceived as an original agreement, a "social contract," negotiated among people in the state of nature. Three significant versions of state of 
nature theory can be found with Thomas Hobbes, John Locke, and Jean Jacques Rousseau.
Hobbes and Locke agree that things would be bad in the state of nature. Hobbes famously said that life would be "poor, nasty, brutish, and short." Everyone would be vulnerable to predation by the strong, and little property could be accumulated without being looted. To Hobbes, governments are formed for the sole purpose of protecting one's existence. To the Sovereign, the King, all power is then ceded. Any rights that the subject then possesses, over and above their lives, are dispensed at the discretion of the Sovereign.
Locke saw the matter rather differently. In the state of nature, whatever one's vulnerabilities, right and wrong would already exist. Murder would already be murder, theft already theft. The problem with the state of nature is that justice could not be well enforced, especially in that being a judge in one's own case would inflate one's sense of injury and turn just retribution into unjust revenge. The purpose of government, then, is to more effectively institute justice. The rights that already existed in nature are simply recognized, not created, by government; and if a government ever failed to enforce those rights, it would lose its legitimacy.
What do the differences between Hobbes and Locke amount to? At the time, it was the political difference between Tories and Whigs. Hobbes was an apologist for an absolutist Monarchy, tragically represented in England by King Charles I, who was deposed and executed (1649), and King James II, who was deposed and went into exile. Locke was a partisan of the power of the Parliament and wrote of his views after the Glorious Revolution of 1688, which drove out James.
In traditional terms, obedience was owed to the Sovereign, whether he ruled well or not. Revolution was inexcusable treason. Locke argued, however, that government had only a conditional and fiduciary authority, which it could lose by the non-performance of its charge. We no longer need to read Locke for a statement of these principles, because Thomas Jefferson wrote them into the Declaration of Independence in 1776: "That to secure these Rights, Governments are instituted among Men,," and "whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it.." Jefferson puts in two or three sentences the purport of Locke's Second Treatise of Civil Government.
A curious feature of recent political philosophy is that Hobbes tends to get all the attention. When I was an undergraduate at UCLA [1968-1971], I remember much discussion of Hobbes, and Leviathan was always to be seen on the shelves for many classes in the campus bookstore. Of Locke's political thought, however, I heard nothing, and the Two Treatises of Civil Government was a book I never saw. This circumstance has continued in the source books I have used for my Modern Philosophy class, where both Hobbes and Locke are featured but where selections of Locke's works never include any of his political writing.
What is going on here? Was Hobbes that influential a thinker and Locke of no significance? In fact, just the opposite is the truth. Whigs hated Hobbes because, of course, he endorsed the absolute authority of the King. However, Tories did not like Hobbes either, because he was an atheist and materialist who made a secular argument for his view of government. To the Tories, the authority of the King came from God. The absolute power of Kings was a Divine Right. Locke himself addressed such arguments in his First Treatise. So nobody of any political significance liked Hobbes, while Locke provided the theory both for British government after the Glorious Revolution and for American government after the American Revolution. How could Hobbes now then be getting all the attention and Locke little or none?
The answer appears to come with the Leftist bias of recent academic opinion. This is by no means for Monarchy, but it certainly is for a government of unlimited and absolute power -- not to mention materialism and atheism. There is therefore no objection to the results of Hobbes's argument. Instead, Hobbes is addressed and criticized for the features that he has in common with Locke -- without, of course, Locke being mentioned. First of all, Hobbes is taken to task because his state of nature consists of individuals. Since the Left is collectivist, there is no sin greater than "individualism," which is associated with the despised "liberalism." Hobbes can then be tarred as a liberal. However, Hobbes is not a liberal -- one who believes in the primacy of the freedom of the individual -- Locke is. But Locke can be ignored if the basis of Liberalism, individuality, is removed through a critique of Hobbes.
Second, Hobbes allows for the existence of Civil Society, i.e. a sphere of public action that is independent of government. With Locke, the existence of Civil Society is secured by the limitation of the power of government. And since limited government is essential to liberal ideology, so is Civil Society. On the other hand, Hobbes's Sovereign does not need to allow Civil Society, but he thinks that the wise Monarch will nevertheless provide for it. This is a tribute to Hobbes's good sense, but not one to be acknoweldged by a Leftist critique. Instead, the very existence of Civil Society is anathema, and, again, Hobbes can be attacked for a characteristic of his theory that is actually more properly and naturally a feature of a liberal theory like Locke's.
The condemnation of Civil Society began with Rousseau, the source of his totalitarianism, and then was picked up by Marx. In fact this is the foundation of totalitarianism for any form of Marxism, regardless of how apologists may want to claim that Soviet Communism wasn't "really" Marxism, which is really sweet and loving. Marx characterized Civil Society itself as the "war of all against all," bellum omnium contra omnes, quoting Hobbes. However, Hobbes uses that as a characterization of the State of Nature, not Civil Society, which itself is hedged around by the Rule of Law. This warrants careful attention. Enemies of capitalism typically say that Capitalism is the bellum omnium contra omnes, parroting Marx. People may not be aware that this is what they are doing, or that it is a corruption and misuse of Thomas Hobbes. The clueless "useful idiots" may not know what they are saying.
This whole process of misdirection using Hobbes, however, serves the Leftist purpose of keeping the student or the public in ignorance of what real Liberalism is. If only Hobbes is used in political philosophy, then everyone becomes accustomed to his view of absolute and unlimited government, which then stands without contradiction.
If Locke was the favorite of British and American political philosophy through the 18th century, where did the collectivist ideology of the Left originate? Well, we get that through our third state of nature theorist, Jean Jacques Rousseau. In stark contrast to Hobbes and Locke, Rousseau thought that life in the state of nature was not bad, but good. Men were free and happy, while today, under modern governments, men live in chains.
Part of this was the development of the fantasy idea of the "Noble Savage." Locke in his day had said that even a day laborer in England was better clothed and fed that a King among the several (Indian) nations of America. Captain Cook's reports about Tahiti, and the first glowing embers of Romanticism, however, led to Rousseau's impression that people lived better and happier lives in pre-modern conditions. Perhaps he had not heard about Tahitian or Hawaiian nobility killing commoners for, in effect, lèse-majesté. But it wasn't just Rousseau. Even Jefferson, otherwise a four-square Lockean liberal, thought that Indians might be living better lives than the civilized.
But if the state of nature was good for Rousseau, then wouldn't the reasonable thing be to return to it? The way hippies took to the jungle on Maui. That is always a problem for such views; but even if returning to nature is somehow impossible, or for some reason undesirable, the question of politics is then how the conditions of modern government can be revised so as to reproduce primaeval justice and bliss. Rousseau's version of the Social Contract (here the name of his book) aims at this end. It is to be accomplished by creating a state that embodies the "General Will." As in Hobbes, this is a conception of absolutist government, but it is also even more collectivist and statist than Hobbes's conception. Unlike Hobbes, Rousseau believes that there are rights in the state of nature, but then these rights are given up to the State in the process of creating a vehicle for the General Will. What goes along with this, in the starkest political contrast to both Hobbes and Locke, is Rousseau's rejection of the existence Civil Society. Allowing for Civil Society simply permits the sort of private interests that exploit others and detract from the General Will.
Rousseau's theory thus opens the door to modern totalitarianism, which can be all but defined as the rejection of Civil Society and private life, where all relationships are going to be expressions of political ideology and the State. It will be no surprise to find Marx characterizing and rejecting Civil Society just as does Rousseau, or that the modern Left features slogans such as, "the personal is political." Rousseau himself says, "Everything is at root dependent on politics." Sometimes the Left uses the term "Civil Society," but they always mean by it political activist groups, whose goal is to influence, or control, political power for its goals -- at the UN these activists are called NGO's or "Non-Governmental Organizations."
But Rousseau's ideas had consequences closer to his own day. The Reign of Terror in the French Revolution was widely and properly seen as the embodiment of Rousseau's vision. That the Terror was a debacle of crime, horror, and failure has not prevented it from becoming the paradigm of political triumph and meaning in later ideology. Its features were reproduced without regret or surprise in the Communist revolutions of the 20th century, from Russia to Cambodia. Lenin quite deliberately created what he himself called a "Red Terror." We still see philosophers, not surprisingly Hegelians, who glory in terror and slaughter, praise the self-genocide in Cambodia, and who think there has not been enough of it. Part of the appeal of such things perhaps can be seen in the characteristic moralism by which politics reproduces the meaningful unity of life previously conveyed only by religion.
The most recent critique of liberal individualism, in support of collectivist and statist ideology, comes from "post-modern" or "deconstructive" hermeneutics. There the argument is that individuals as such did not exist in the state of nature, or even historically, until the modern era. Individuality was "socially constructed" after its ideological creation by people like Descartes and, apparently, Hobbes. Whether in the service of Rousseau, Marx, or Lenin, this may be the cleverest attack on liberalism yet. That it is a feature of an incoherent epistemology is no problem among the philosophically naive who have been offered only a self-serving fragment of modern philosophy -- now grandly and simply called "Theory." And there is a weightier philosophical tread in the background, since the metaphysical subversion of the individual for statist political purposes goes back at least to Hegel, whose full revival, after decades of scorn by Positivists and Analytic philosophers (not to mention anyone who saw Hegel as the common inspiration for both Nazi and Communist totalitarianism), has been in full flood since the 1970's.
Of course the notion that individuals did not exist in the state of nature is hoist on its own petard of deconstructive method, since no interpretation of the past, in those terms, is more authoritative than any other, and a Marxist vision of the collectivist "primitive communism" of the past is itself a myth that, like all other post-modern "truth," is only as good as the power structures that enforce it, i.e. all the English and Sociology departments full of what Robert Hughes has called "lumpen Marxism," promoted by professors, safe and irresponsible in their tenure, who will broke no contradiction. Flunking dissenting students, or refusing hire or tenure to heterodox scholars, is as good as any evidence or argument.
More seriously, we must ask how sensible is state of nature theorizing in the first place. In the 17th and 18th century, philosophers may have been confident that they were talking about conditions that really existed, or even still existed among American Indians or Tahitians. That there was certainly no true absence of government or social organization in those societies is now fairly obvious -- the deconstructionists are not actually wrong to claim that a society of truly atomic individuals probably never existed. Does this then just discredit the method? Well, no, for it is not at all necessary to regard the "state of nature" as a historical reality. It is a thought experiment.
By imagining society without government, we may be able identify the instabilities or disadvantages that would precipitate such organization. This may provide clues about historical development, or in general just indicate the practical necessity of government. This is also an important device given the recent revival of a frank and overt anarchism, on both the Left and among some libertarians.
If anarchists are to share the deconstructive argument that individuals don't exist in the state of nature, or libertarians hold that governments have no right to override individual will in anything, then their absence of government will nevertheless allow the existence of certain basic social organizations. How these will then operate while falling short of genuine governments and states will then be a good question.
Of course, in both history and modern society there are terms for social groups that appear to fall in between atomic individuality and government. In traditional terms those could be "tribes," in the modern context, "gangs." With both of them, of course, we get something else: "War." As war leads to conquest, eventually we get levels of organization that involve states and governments by anyone's reckoning. There is no doubt about the historicity of such development -- Egypt became a unified nation state long before any of the ideological or technological developments that could be blamed in modern thought for distorting natural human social evolution.
As a thought experiment, the state of nature is of particular use in relation to Locke's liberalism. That is because the liberal conception of government is that it only exists for the limited purpose of remedying particular disadvantages that would occur in the absence of government. Since the principal disadvantage of the state of nature is that the innocent and peaceful have difficulty resisting predators, the principal charge of government is to protect persons and their property. Were government to become an instrument of predation itself, then it would, in Locke's terms, be making war on its own citizens and thereby lose all its legitimacy.
Of course, one of the appeals of anarchism (or at least of "anarcho-socialism," as opposed to the all but oxymonic "anarcho-capitalism") is hostility to property -- "property is theft." If property cannot be protected in the state of nature, then so much the better for the state of nature. Of course, if property means one's food, clothing, and shelter, most people would rather prefer that they could be secure in those possessions. The retort might be that nobody has a right to the exclusive possession of their food, clothing, and shelter if others have equal need of them. People have a duty to share, and the dispossessed thus do not wrong anyone by even forcibly taking their fair share. Unfortunately, this makes for a dynamic of which most people are well aware. If one's food, clothing, and shelter are the result of one's own labor, and those demanding their "fair share" have made no effort to provide for themselves, but in fact have come to depend on securing by force the goods that have been created by the effort of others, this is the very definition of predation, and of gangsterism. The gangster who specialized in violence, while others specialize in production, has a predatory advantage.
Although all these considerations begin with a thought experiment on the state of nature, their terms are nevertheless immediately relevant to modern political debate. Those who believe that they have a right to things like employment, housing, medical care, vacations, etc., i.e. all the positive rights of the modern welfare state, socialism, or communism, nevertheless rarely stop to consider that they are making claims of forced labor on others -- or "involuntary servitude," i.e. slavery. This is because things like employment, medical care, or other goods or services cannot be provided without someone other than the subject of the rights providing them. They impose duties of commission on others. In social democracies, forced labor is usually imposed discreetly and indirectly. People are simply taxed to pay for such things, so that the forced labor for others is simply the time it takes to earn enough to pay one's taxes. If taxes are illegally avoided, however, we see the result, where men with guns (the police), courts, and prisons will eventually be involved.
On the other hand, the "negative rights" of a liberal democracy, like freedom of speech and religion, and property rights, only impose duties of omission on others -- the obligation to leave me and my property alone, go your own way, and mind your own business. The political smoke screen for positive rights is usually that taxes pay for one's own benefits, which means that taxes are simply part of one's own self-maintenance. However, the smoke conceals the particularly modern and sophisticated development of the old state of nature predation: Political rent seeking.
As Frederic Bastiat said, the state is the great fiction by which everyone tries to live at the expense of everyone else. Since not everyone can be successful at living at the expense of others, the welfare state politician tries to make everyone believe they are successful, while concealing or obscuring the existence of those who actually are. Thus, where leftists like to think of capitalism as no less than a Hobbesian state of nature, with a war of all against all, the truth is that it is political power that allows this to happen, where political losers can be deprived of their property, freedom, or lives in the name of some grand ideology.
While Hobbes produced a theory that could be of some comfort to Tories at the time, and the darling of leftists later, it did not sit well with conservatives in the long run, and not just for its lack of religion. A true secular conservative political theory eventually hit upon a different approach altogether. This began with another Tory atheist, David Hume, who was so lionized for his dismissals of religion that, like Hobbes, 
his political conservatism was conveniently ignored and forgotten by those who didn't care for that aspect of his thought.
But Hume, as a Skeptic, was unlikely to be an ideologue. Instead, Hume explained human belief in things like causality and morality in terms of expectations set up by psychological habit and custom. For example, as we have always seen certain effects to follow certain causes, we form an instinctive expectation that they always will. The level of certainty, if only subjective, that goes along with this is not always acknowledged even by Hume enthusiasts; but we see it clearly expressed in Hume's rejection of the possibility of miracles, where his argument is that, as miracles are suspensions of the laws of nature, we would never have formed our conception of the laws of nature in the first place if there ever had been any such exceptions. Therefore, they never happen, and no sensible person would believe in them. Hume's political philosophy, like his moral, is just an extension of this.
Habit and custom produce historical tradition, and tradition, like customary law in English jurisprudence, becomes normative. Thus, the greatest guide in morals and politics is history. It is Hume the historian who shows his Tory sympathies the most clearly, and we find Jefferson warning students about this tendency in Hume's historical writing.
The use of history overcomes the objection that theory about the state of nature is all just imaginary. Whatever the state of nature may have been like, history is what actually resulted from it, or from whatever any earlier arrangements of human society may have been. At the same time, history can be cited as a mechanism of testing and justification. History shows us what works, what is successful and what isn't.
In his appeal to custom and history, however, Hume actually commits a fallacy, a famous one for whose identification he was himself responsible. Thus, Hume argues, statements in the imperative mood, or with the copula "ought," cannot logically be derived from statements in the indicative mood, or with the copula "is." Because of this, matters of value, the imperatives, are logically independent of matters of fact, the indicatives, and cannot be justified with reference to them.
In these terms, the force of Hume's appeal to history is limited. History consists of matters of fact, and however well things seem to work, or whatever customs or insitutions are generated, the question still remains whether they are good. History cannot justify any "ought." Hume was certainly aware of this kind of separation, since it is characteristic of the rest of his philosophy. Thus, the sense of "necessary connection" that Hume found in the principle of causality and the laws of nature could not be justified by anything in experience, but was due entirely to the subjective impression given from the habits of the mind. Similarly, the wrongness of murder was not due to any fact of the matter but was only supplied by the sentiment of the subject. As with murder, so with any other value judgment about actions, events, or history.
This did not strike Hume as a shortcoming with any practical consequences, but it is a subtlety that might be lost on writers with less epistemologically sophistication and could well be a disappointment to those with as much. Hume's larger skepticism also imposed limitations on what historical justification might in fact justify (as much as it does). Thus, like Hobbes, Hume is an atheist with no particular use for religion. His empiricism and skepticism are positively adverse to religious concepts and beliefs, and he is little inclined to allow that history might have demonstrated them.
Although in their time Hobbes and Hume were offering arguments for conservative political institutions, it was with the innovation that they were offering a secular basis for them, unlike the religious justification that was, and had always been, used. But then we get something a little different with Edmund Burke. Like Hume, Burke appeals to the test of history for his principles, but then Burke's principles, and his view of history, were a little different. Thus, while the thrust of Hobbes and Hume's arguments was to support the Tory cause, Burke himself was a Whig.
After the Glorious Revolution and the success of Britain under Whig governments, Burke might reproach Hume for not paying enough attention to recent history. But then, of course, that is one of the problems with using history for justification: one can cherry-pick the history that is thought to be relevant. With Burke as a Whig and as a supporter of the American Revolution, one might wonder whether, history or not, he should be classified as a conservative at all. However, this was settled by Burke's response to the French Revolution. The Revolution's a priori legislation of the "Rights of Man" and especially its attack on the Church, both involving the rejection of a great deal of history and tradition, alarmed Burke, who then began to warn against the tendencies of this approach. The warning was given before the Terror, but then the Terror itself, and Napoleon, fully vindicated Burke's prescience and wisdom.
An Edmund Burke who was both sympathetic to religion and a critic (however justified) of the French Revolution could never be a "progressive" to the Left. So he has come down as the father of a modern, secular conservatism. An appeal to history, however, could be given a very different twist, more in line with Burke's own Whig party. Thus, F.A. Hayek, who forcefully denied being a conservative, could see history, not as a cumulative proof of what is (which could be a dangerous judicial positivism), but as a place of something like scientific experiment. Much political debate these days, after all, is about economics, and economics involves much in the way of predictions about employment, production, wealth, etc.
There is a great deal of empirical data about such things. Hayek, as an economist, and a disciple of Hume and Karl Popper, saw history in experimental terms. This still left the question of moral justification as open as it was with Hume, but it did open up matters to innovation and novelty as Hume and Burke's conceptions of history did not. But Hayek would end up often regarded as a conservative simply because he was a defender of the free market and capitalism -- on the principle of much radical academia (or even a great deal of Democratic Party politics) that anyone to the right of Marx is a conservative.
History is not a thought experiment like the state of nature. It could be thought of as just the opposite, and a healthy corrective for abstract speculation. However, its inability to sustain normative judgments, so clear in Hume, and the general methadological question of what then is the significance of historical evidence, end up producing something rather like a thought experiment, as we imagine what history is doing. The very idea that history is experiment, which is what we get in Hayek, then suspends the issue of the origin of the normative judgments and reduces the matter to their predictive effectiveness.
For instance, the very idea that driving up wages would promote prosperity and employment, although still widely believed, was actually practiced by Herber Hoover and Franklin Roosevelt. The result was not what they expected, but something else, namely crippling unemployment (20%+ from 1932 to 1936, and then again in 1938 & 1939) with economic collapse and stagnation. This is a very simple truth of history -- indeed, even the partisans of the New Deal cannot deny that its characteristic programs failed to end the Great Depression -- but its lesson is subbornly unlearned at the level of most American public debate. Indeed, the lesson is still unlearned even by those living with the consequences of its present most forceful application, as in contemporary France and Germany, where poor growth, high unemployment, and rigid labor laws have gone hand in hand for many years now.
The perversity of argument in this area one often sees, for instance, with respect to health care in the United States, where, after a forty year socialist regime of Medicare, Medicaid, and third party pre-paid health plans (falsely called "insurance"), people can still argue with a straight face that ballooning costs and closing hospitals are the "mess" created by capitalism. That similiar evils plague the purely socialist Canadian medical system escape the notice of those who nevertheless like to cite the satisfaction of most (healthy) Canadians with the system. This problem with the use of history, however, is a feature of the use of all evidence in science, where falsifying data may be systematically overlooked whatever the field. Certainly, in the humanities and the "social sciences," sophistry is not going to be slowed one iota by evidence.
We return to something like a pure thought experiment again with the influential A Theory of Justice of John Rawls. Rawls likes to think of his theory as a form of Kantian rationalism. However, the Kantian Categorial Imperative does not depend on a thought experiment, but supposedly on the nature of reason itself, with its imperative character due to its transendent origin, i.e. that reason relates us to things in themselves and not just to matters of fact in the phenomenal world. Rawls and others may have been confused by the test for the application of the (first version of the) Categorical Imperative, which, as the "universalization" of a "maxim" (a particular action, like robbery, turned into a rule) is rather like a thought experiment.
Rawls' notion is to take the "social contract" of the state of nature and abstract it from any of the imagined historical conditions of the past, present, or future. The "original position" is a timeless place of bargaining with society, which is behind a "veil of ignorance" that conceals from us all the possible circumstances of our social existence. 
Rawls' principle is then that the contract to be struck should maximize freedom consistent with the most equality that can be achieved. We get this because in the "original position," we do not even know of what moral, mental, or physical abilities we will have, so the bargain we would go for will give us the best situation regardless of what those abilities might be. If that requires some limitation on the freedom of others, that would be small loss to us if it betters whatever possible situation we might be in.
It was surprising to few that this formula turns out to be consistent with the sort of welfare state social democracy that had become the meaning of "liberalism" in American politics by the 1950's and '60's. Whether anyone agreed with those politics or not, it was noted early that the moral force of Rawls "original position" was entirely unexplained. Rawls based that, not on any thought experiment, but on a general intuition of "fairness."
If, of course, "fairness" includes the notion that everyone has a right, because they would want, their equal share of the economic and social "pie," then Rawls' whole exercise simply assumes what is to be proven and begs the question. If the procedure was simply to formulate whatever principles would be effective in giving us a result that looks "fair" to our social democratic intuitions, that might be worth investigating. But to think that it would then prove anything, or justify those intuitions, would be a complete fallacy.
Rawls does not obviously begin, of course, with the welfare state. He begins with a requirement to maximize freedom. This, like everything else, is left without justification. In our own original position, perhaps it is what we might want for ourselves, but, unless it presupposes a moral priniciple like Kant's, that requires us to respect the freedom of others, it does nothing to protect their freedom. Presumably, the obligation to respect the freedom of others is an artifact of the contract that results from the thought experiment. However, the obligation of contracts is something else that presupposes a moral principle, and we have the further difficulty why anyone at all would be obligated to respect a contract that has just been worked out by some academic philosopher like John Rawls. The foundational difficulties for a theory like Rawls' are thus endless and devastating. In its abstraction, the theory can avoid the danger of judicial positivism posed by references to history, and it is even free of the pseudo-history of the state of nature, but this freedom of Humean "is" does not successfully create the foundation for a Humean "ought."
As a thought experiment, however, there is more that we can do with the Theory of Justice. The Socratic procedure, of course, is not to inquire about justification, but about consequences. With Rawls, it is not enough to get a theory that abstractly satisfies our intuitions of "fairness," but we must keep going and see if the real consequences continue to satisfy those intuitions. Thus, we may note that the productive population of society, those whose virtues, intelligence, and industry enable them to create economic goods, tend to resent it, and think it unfair, if the fruit of their labor is taken from them to be "redistributed" to those without virtue, intelligence, or industry.
Nevertheless, Rawls' theory implies that the latter have as much right to the goods as the former -- it is certainly what they would negotiate for in the original position. However, perhaps in the original position we might consider how we would feel to be the ones with the virtues, intelligence, and industry. We might consider that we don't want the productive to be too discouraged, or their productivity might flag, reducing the "pie" for all.
The effect of incentives for productivity and wealth has been a matter of concern from ʾIbn Khaldûn to Benjamin Franklin, well before most of the conditions of modern capitalism. On the other hand, there is a body of modern opinion that does not believe that production is the result of virtue, intelligence, or industry. Instead, these are all fictions by which the workers are alienated and oppressed. In the classless society, the workers equally and spontaneously produce abdundant economic goods, to which all are then equally entitled. It is difficult to maintain such a view with any knowledge of history, economics, or morals, but there really is no lack of academic intellectuals who have managed to do so. Their folly is almost too painful to contemplate.
Of greater interest in this context is how the consequences of Rawls' theory can be pursued with less reference to history and more as the pure thought experiment. Thus, if we simply imagine the redistribution of goods from the productive to the unproductive, we can examine how this could happen. Nor need we go so far as to worry about the conditions of capitalist production. If everyone had their own equal share of farmland and made their living off the soil, would the results be exactly the same? They never are; for there is a difference, both possible and real, between people who work hard and those who do not.
Even Stalinist Russia had to recognize that, the principle of Soviet law being that people received goods "according to their toil," and not, as in the Marxist formula, "according to their need." In the original position, we would need to imagine our situation if we were hopelessly violent, stupid, and lazy alcoholics. We would still want some share of the goods of society. In the state of nature, indeed, if the productive were able to defend themselves, we would be out of luck. In a government formulated by Rawls, however, we could always draw on the power of the state to "redistribute" the goods. That is the essence of the welfare state. And the productive might get outvoted, which would be the essence of social democracy: Two wolves and a sheep voting what to have for dinner.
To redistribute goods in the state, we need people whose job it is to do that. These would be bureaucrats, politicians, the police, etc. They produce nothing themselves, but they see to it that society functions as it should, i.e. that goods should be transfered, to some extent, from the productive to the non-productive. Since the latter group includes themselves, of course, they also get to decide what they are worth. How much do they get in comparison to, for instance, the otherwise ordinary non-productive (or even productive) citizen? We could predict the outcome of that question with some ease, as Jefferson did already: "Mankind soon learn to make interested uses of every right and power which they possess, or may assume."
And if we ask why politicians, etc., deserve to live so well (rather than in the poverty, for example, of Plato's Guardians), the answer is likely to be the nobility and indispensability of their selfless service to the public. The truth, of course, is that they simply become a vehicle for rent-seeking, not just their own, but for anyone else able to offer some advantage (like political support) in return for some consideration, benefit, or privilege. In other words, Rawls' thought experiment, regardless of the questions of justification, may be valuable indeed if it is pursued to the extent recognizing the incentives, and the means of corruption, created by the welfare principle he formulates. What in the state of nature would have been robbery can be given a selfless gloss when the conditions of production in human capital (the virtues, etc.) can be ignored in favor of the expectation of the original position that all goods are simply up for negotiation.
At the same time, there is all the difference in the world between those who believe they have a right to the goods of others and are willing to use force (their own or the state's) to get them, and those with goods who believe they have a duty to bestow some of them on those who, through no fault of their own (i.e. through no failure of virtue), are in need of them. The former is a welfare state conception like that of Rawls, and the latter is the traditional belief in charity as a virtue.
While the American people are the most charitable on Earth, it turns out that the religious are more charitable than any others, and that the conservative (including most religious) are more charitable than those on the political left. The issue, of course, is that those on the left do not believe in charity, they believe in "redistribution" by government. To them, charity is not their responsibility, and the whole idea of charity, since it is not a legal duty, is a rejection of the rights of the oppressed. Curiously, the religious and conservative also give blood much more than those on the poltical left, which is a bit harder to understand, since the government could not itself give blood without getting it from citizens.
Presumably, those on the political left expect that someday a bureaucrat will show up at their door demanding that they give their "fair share" of blood. That may not be what they have in mind, but then, certainly, in the original position it is in our interest to formulate a social contract that will not leave us short of blood. As the goods of society must be redistributed in the interest of equality, surely the blood must be also.
As a thought experiment, the Theory of Justice has all of the weaknesses of the state of nature, and more, and none of the virtues or connection to reality that the use of history, or of a predictive method, would have. The theory of the state of nature, indeed, is much superior since in the state of nature, if the productive are able to defend themselves, no one else is going to be able to require them to give up goods against their will. With all of this theory, however, there will be nothing more helpful than to see the consequences of the ideas, both logical and historical. Of everyone here, F.A. Hayek was in the best position to appreciate that.
Henry St. George Tucker, in Blackstone's 1768 Commentaries on the Laws of England. In the theory of the liberal state, it is often said that citizens concede to the state a monopoly on the use of force. This is certainly true in a particular way, but it is actually not generally true, and the impression of general truth that the statement makes leads to false and dangerous implications.
The state is never conceded a real monopoly of force because every citizen retains a default right of self-defense. The state, in the form of police or military, cannot always be there when the citizen needs to be protected. In the absence of that protection, the citizen is temporarily back in the state of nature, with no recourse but his own powers. Many people may not know that under American law, the police are under no legal obligation to keep citizens safe. If the police only show up after the crime has been committed, even if they are called at a timely moment, the victim has no claim against them. They never promised to interpose themselves between citizens and every crime. [note]
The Common Law, and American law, recognize the right of the citizen to use force, evenly deadly force when necessary, in self-defense. British law has steadly eroded this right. In British law now, it is illegal to carry anything that can be used as an "offensive weapon," and since defensive weapons can certainly double as offensive weapons, this means that carrying any weapon whatsoever is now illegal -- even using a pair of scissors in self-defense has been judged a crime. At the same time, the citizen is told not to resist any attack or crime.
Should a citizen resist and actually harm an attacker, well, an "attacker" is innocent until proven guilty, so that citizen had no right to harm him. This is substantially the state of British law, which actually does often treat the resistance of victims more harshly than the crimes of perpetrators (where even real perpetrators are really only victims of society, which means by leading a life of crime they are actually victimized by the better-off people whom they "victimize" in turn). Citizens have actually been prosecuted for threatening or detaining criminals by using toy guns.
The state thus really does claim a monopoly of force, or even the appearance of force, to the extent that self-defense itself becomes a crime. Blackstone, who in the quote above, affirms that "The right of self-defense is the first law of nature," would find this incredible -- and most people not aware of it do find in incredible -- but it is now the case. It is a level of political, legal, and moral folly that is painful and astonishing to contemplate.
And this tendency is obvious in the United States also. In 2020, a couple in St. Louis who brandished weapons to warn off a mob who had broke gates to get onto their property, and were threatending them, ended up charged with crimes -- despite very strong support of self-defense in Missouri law. The Attorney General of Missouri requested that the charges be dismissed; and the Governor of Missouri (belatedly) warned that he would pardon the couple in case of conviction. As it happened, the couple were somehow persuaded into a plea deal to a lesser charge, which involved seizing their guns; and the Governor was nowhere to be found in pardoning them from that travesty. That is the state of self-defense in the United States.
But if the state does not really have a monopoly of force, what does it have? That is simple. The state has a monopoly of justice. In the state of nature, it is up to you, or your friends or family, to deal with wrongs that you have suffered. For murder or serious crimes the natural penalty will be obvious enough: you kill the perpetrator. In the modern equivalent of the state of nature, the world of crime, death is often the only penalty regarded as appropriate when one is wronged. On the other hand, there was another penalty that often would have been regarded as the equivalent of death, and perhaps more appropriate for lesser offenses: slavery.
In the absence of government, the only other penalties that might have been practical would have been beating or mutilation. Again, these are things that we still see in the world of crime. The favored modern public form of retribution for crime, prison, is something that would have been difficult and burdensome in the state of nature. Indeed, historically it saw only limited use until the 19th century, and until then it is was often the belief that prisoners should be fed and otherwise cared for by their own families. British debtors' prisons even had windows where prisoners could beg from passersby.
The real problem with justice in the state of nature, however, is not the character of the punishments, but the character of justice itself. To Locke, the desire for revenge, where one is judge in one's own case ("those Evils, which necessarily follow from Mens being Judges in their own Cases"), means that revenge more than justice is likely to be served. Only a disinterested third party, familiar with the habits of human nature and the traditional wisdom of addressing criminal and civil wrongs, is in the best position to dispense justice.
For the citizens, this does not abolish the use of force but limits it to two purposes: (1) self-defense, which repulses the crime in the act of its commission, and may even require deadly force; and (2) apprehension, where a criminal, who has committed a crime or found out in the act of its commission, is seized for the purposes of judgment. This may require deadly force also, if the criminal resists apprehension with deadly force himself.
There are certain limitations that apply to justice administered by the state itself. Thus, the task of the apprehension of criminals is separated from the task of their judgment and punishment. This is part of the system of "separation of powers" which is designed to restrain abuses and injustice. Thus, it is not the job of the police to inflict summary punishment. It is their charge to deliver suspects to prosecutors and the courts. Other provisions protect the innocent, such as the right to trial by jury and prohibitions of self-incrimination and double jeopardy.
Unfortunately, the temptations to abuse do not disappear just because officials are not "Judges in their own Cases." Crimes become "their own Cases" to officials just because they are involved in them and come to have a personal stake in their outcome. Thus, the desire to evade the separation of powers and inflict summary punishment is behind the recent use of "foreiture" laws, where suspects have their property seized, not merely as evidence of crime, but in an attempt to inflict punishment before charges are even filed, or even if charges are never filed or a crime ever proven.
Thus, individuals cruising in their automobiles, perhaps to purchase drugs or hire prostitutes, have their cars seized immediately, even though this clearly violates the 14th Amendment to the Constitution, that no State shall "deprive any person of life, liberty, or property, without due process of life." The judicial sophistry of "formal" rather than "substantive" due process means that simply having a law allowing seizure means that "due process" has been observed. By the same token, we should note, a law could just as easily allow arresting officers to shoot people apparently buying drugs or soliciting prostitutes, and that would satisfy the same criterion.
Fortunately, many States have now passed laws, often by popular Initiative, prohibiting permanent seizures except for crimes of which persons have been found guilty in a proper trial. Unfortunately, Federal law, and that of many other States (including California), does not observe this fundamental principle of justice. The Supreme Court, although far too complacent and accommodating when it comes to seizures, has at least ruled that seizes do constitute "fines" and are covered by the 8th Amendment prohibition of "excessive fines." The previous sophistry was that seizures are actions ad rem, against the "things," and thus did not involve their owners at all -- and the "guilty" objects were not protected by rights like presumption of innocence or trial by jury.
What are people charged with the mission of justice doing promoting injustices like these? Well, they have forgotten, if many of them ever knew, that justice, indeed, is the charge and raison d'être of the state itself. Indeed, this is evident in the popularity of judicial positivist jurisprudence. To Judicial Positivism, the only law is statutory ("positive") law, and justice itself is simply the "practice of the courts." Thus, by definition, no law can be unjust, and no action of any court, following the positive law, can be unjust. To common sense and any minimal sense of natural justice, such theses are proposterous and vicious to a high degree. Nevertheless, these are the principles implicitly accepted by most modern American judges, politicians, lawyers, and law professors. Robert Bork was pilloried for openly admitting them, but few contradict them in practice.
An excellent example of the damage and injustice effected by judicial positivism is in the failure of the "justice system" to observe the venerable common law distinction between mala in se and mala prohibita, i.e. between "evils in themselves" and "prohibited evils." A malum in se, an "evil in itself," is a natural wrong, or something which is already an evil in the state of nature. Everyone knows what this covers: assault, murder, rape, robbery, etc. These crimes are at the heart of any criminal code, and they are the things that everyone (well, apart from Nietzscheans) wants condemned and punished.
On the other hand, a malum prohibitum is something that is wrong only because it is "prohibited" by the state, a wrong that would be meaningless or unenforceable in the absence of the state. The problem with enforcing mala prohibita is that often many people do not regard them as wrongs at all. Indeed, many people may believe that they have a right to engage in the prohibited activity. This is especially conspicuous with prohibition laws applied to alcohol or drugs. People dying of cancer tend to think that they have a right to whatever drugs can preseve their life (e.g. marijuana) or aleviate their suffering (e.g. heroin). Is it then justice for the state to arrest dying people, perhaps exacerbating their suffering or hastening their death, in order to enforce these laws? Certainly not. By the same token, many jurisdictions in the United States (Washington D.C., New York City), as now with Britian and Australia, all but prohibit the possession of firearms, even though this may render citizens defenseless in some of the highest crime areas in the nation. Do citizens have a moral duty to obey the laws and be defenseless? Certainly not.
The motive for such laws is not justice; it is power. To the bien pensants of modern jurisprudence, there is no difference between mala in se and mala prohibita because all laws are functions of the power of the state. There is no natural justice and so there are no mala in se. This leads to further injustices, for without natural justice there is no such thing as natural retribution. To judicial positivism, punishment is simply a way to discourage breaches of the law. Thus, whatever punishment is necessary to discourage such breaches is proper and unobjectionable. Determinists like Thomas Hobbes, David Hume, and Arthur Schopenhauer all agreed that the only purpose of punishment is to discourage criminals from reoffending.
This leads to a characteristic anomaly of modern law: mala prohibita are often punished more harshly than mala in se. Thus, the average time served for murder in the United States recently was only eight years, while under "mandatory minimum" sentencing in drug laws, women have drawn ten years simply for being the girlfriends of drug dealers, and perhaps answering the door to DEA agents (e.g. Rosanna Arquette in Pulp Fiction [1995]) -- while the drug dealers themselves (e.g. Eric Stoltz), giving up names to prosecutors, only draw five years. It is testimony to a serious deficiency in political life in the United States that there is no general public outrage over cases like this. Donald Trump pardoned some women caught up in this injustice, but one wonders how much more of it has happened.
The deficiency, however, is something that long ago was well understood by Thomas Jefferson:
Those who offer us sophistries that any laws whatsoever, however outrageous, are "due process," or who imprison girlfriends for answering doors, or who deny that laws can be unjust, or who arrest people dying with cancer for possessing marijuana: these persons are now wolves indeed. To be sure, we should be able to go about our lives without constant worry that "public servants" are doing their job. But it is no longer their fault. Not only have they forgotten the nature of their duty, to us and to justice, but we have forgotten it also, if we continue to vote for such people or express no outrage at the manner in which they seek power, undermine justice, and prepare constant assaults on our liberties, persons, and property. We have only ourselves to blame that they have gotten away with it and if, like all tyrants, they interpret the "monopoly of force" to mean that might makes right and that only they have the might.
The "Monopoly of Force"
and Mala ProhibitaThe right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
If once they ["our people"] become inattentive to the public affairs, you and I, and Congress and Assemblies, Judges and Governors, shall all become wolves. [letter from Paris, 1787]
Copyright (c) 2007, 2008, 2021 Kelley L. Ross, Ph.D. All Rights Reserved