History of Western Philosophy - Bertrand Russell [357]
I am attempting to go as far as is possible towards stating something like Locke's theory in untheological terms. If it is assumed that ethics, and the classification of acts as 'right' and 'wrong', is logically prior to actual law, it becomes possible to restate the theory in terms not involving mythical history. To arrive at the law of nature, we may put the question in this way: in the absence of law and government, what classes of acts by A against B justify B in retaliating against A, and what sort of retaliation is justified in different cases? It is generally held that no man can be blamed for defending himself against a murderous assault, even, if necessary, to the extent of killing the assailant. He may equally defend his wife and children, or, indeed, any member of the general public. In such cases, the existence of the law against murder becomes irrelevant, if, as may easily happen, the man assaulted would be dead before the aid of the police could be invoked; we have, therefore, to fall back on 'natural' right. A man also has a right to defend his property, though opinions differ as to the amount of injury he may justly inflict upon a thief.
In the relations between States, as Locke points out, 'natural' law is relevant. In what circumstances is war justified? So long as no international government exists, the answer to this question is purely ethical, not legal; it must be answered in the same way as it would be for an individual in a state of anarchy.
Legal theory will be based upon the view that the 'rights' of individuals should be protected by the State. That is to say, when a man suffers the kind of injury which would justify retaliation according to the principles of natural law, positive law should enact that the retaliation shall be done by the State. If you see a man making a murderous assault upon your brother, you have a right to kill him, if you cannot otherwise save your brother. In a state of nature—so, at least, Locke holds—if a man has succeeded in killing your brother, you have a right to kill him. But where law exists, you lose this right, which is taken over by the State. And if you kill in self-defence or in defence of another, you will have to prove to a law-court that this was the reason for the killing.
We may then identify 'natural law' with moral rules in so far as they are independent of positive legal enactments. There must be such rules if there is to be any distinction between good and bad laws. For Locke, the matter is simple, since moral rules have been laid down by God, and are to be found in the Bible. When this theological basis is removed, the matter becomes more difficult. But so long as it is held that there is an ethical distinction between right actions and wrong ones, we can say: Natural law decides what actions would be ethically right, and what wrong, in a community that had no government; and positive law ought to be, as far as possible, guided and inspired by natural law.
In its absolute form, the doctrine that an individual has certain inalienable rights is incompatible with utilitarianism, i.e. with the doctrine that right acts are those that do most to promote the general happiness. But in order that a doctrine may be a suitable basis for law, it is not necessary that it should be true in every possible case, but only that it should be true in an overwhelming majority of cases. We can all imagine cases in which murder would be justifiable, but they are rare, and do not afford an argument against the illegality of murder. Similarly it may be—I am not saying that it is—desirable, from a utilitarian point of view, to reserve to each individual a certain sphere of personal liberty.