History of Western Philosophy - Bertrand Russell [356]
It presently appears, however, that, where most men are in the state of nature, there may nevertheless be some men who do not live according to the law of nature, and that the law of nature provides, up to a point, what may be done to resist such criminals. In a state of nature, we are told, every man can defend himself and what is his. 'Whoso sheddeth man's blood, by man shall his blood be shed' is part of the law of nature. I may even kill a thief while he is engaged in stealing my property, and this right survives the institution of government, although, where there is government, if the thief gets away I must renounce private vengeance and resort to the law.
The great objection to the state of nature is that, while it persists, every man is the judge in his own cause, since he must rely upon himself for the defence of his rights. For this evil, government is the remedy, but this is not a natural remedy. The state of nature, according to Locke, was evaded by a compact to create a government. Not any compact ends the state of nature, but only that of making one body politic. The various governments of independent States are now in a state of nature towards each other.
The state of nature, we are told in a passage presumably directed against Hobbes, is not the same as a state of war, but more nearly its opposite. After explaining the right to kill a thief, on the ground that the thief may be deemed to be making war upon me, Locke says:
'And here we have the plain "difference between the state of nature and the state of war", which, however some men have confounded, are as far distant, as a state of peace, goodwill, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction are from one another.'
Perhaps the law of nature must be regarded as having a wider scope than the state of nature, since the former deals with thieves and murderers, while in the latter there are no such malefactors. This, at least, suggests a way out of an apparent inconsistency in Locke, consisting in his sometimes representing the state of nature as one where everyone is virtuous, and at other times discussing what may rightly be done in a state of nature to resist the aggressions of wicked men.
Some parts of Locke's natural law are surprising. For example, he says that captives in a just war are slaves by the law of nature. He says also that by nature every man has a right to punish attacks on himself or his property, even by death. He makes no qualification, so that if I catch a person engaged in petty pilfering I have, apparently, by the law of nature, a right to shoot him.
Property is very prominent in Locke's political philosophy, and is, according to him, the chief reason for the institution of civil government:
'The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property; to which in the state of nature there are many things wanting.'
The whole of this theory of the state of nature and natural law is in one sense clear but in another very puzzling. It is clear what Locke thought, but it is not clear how he can have thought it. Locke's ethic, as we saw, is utilitarian, but in his consideration of 'rights' he does not bring in utilitarian considerations. Something of this pervades the whole philosophy of law as taught by lawyers. Legal rights can be defined: broadly speaking, a man has a