“The law written in their hearts”?: Rutherford and locke on nature, government and resistance

Journal of Law and Religion

Volumn 18, Issue 1, 2002, Pages 151-189

  Richards, Peter Judson ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85023150844     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.2307/1051497     Document Type: Article

References (231)

1. R.H. Tawney, Religion and the Rise of Capitalism: A Historical Study (Holland Memorial Lectures, 1922) 180 (Harcourt, Brace & Co., Inc. 1926).
2. John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the ‘Two Treatises of Government’ 6–1 (Cambridge U. Press 1969) (footnote omitted).
3. For a subtle and influential reading of Locke, locating him at a crucial turning point in an evolving Reformed Christian tradition, see id. See W.M. Spellman, John Locke and the Problem of Depravity (Clarendon Press 1988).
4. Winthrop S. Hudson, Locke: Heir of Puritan Political Theorists, in Calvinism and the Political Order 108 (George L. Hunt & John T. McNeill eds., Westminster Press 1965).
5. Similarly, another American historian, Herbert D. Foster, saw Locke as the ‘carrier’ of Calvinism from the Reformation to … 1688 and [beyond] …[Thus,] [t]hrough Locke there filtered to the American Revolution five points of political Calvinism held by hundreds of Calvinists, but clarified through his Civil Government: fundamental law, natural rights, contract and consent of people, popular sovereignty, resistance to tyranny through responsible representatives.
6. Herbert D. Foster, International Calvinism through Locke and the Revolution of 1688, 32 Am. Historical Rev. 475, 485–487 (1927) (emphasis omitted).
7. From a continental perspective, the same view is presented e.g. in an influential intellectual history of the period, Paul Hazard, The European Mind [1680–1715] 91 (World Publg. Co. 1963).
8. Where did Locke derive his political ideas? With regard to his general political principles one need not look far. They were being shouted from the housetops during the years he was at Westminster and Oxford, and they had been explicated again and again by the sons of Geneva with whom he was in contact throughout his life. Even a conservative Presbyterian like Samuel Rutherford, in Lex Rex …, invoked almost every argument that was later used by Locke, including an appeal to the law of nature, the ultimate sovereignty of the people, the origin of government in a contract between the governor and the governed, and the right of resistance when that contract is broken. Hudson, Forty-Four Questions. at 113.
9. Harold Berman asserts that Locke, an Anglican in faith, was nevertheless much influenced by Calvinism. Locke derived from Calvinism his theories of natural law, the social compact, and government by consent of the governed. He also accepted the Calvinist Two Kingdoms doctrine, which encouraged the transfer to civil government of many features of ecclesiastical polity. Harold J. Berman, Religious Foundations of Law in the West: An Historical Perspective, 1 J. L. & Relig. 3, 29 (1983) (footnote omitted).
10. John Coffey, Politics, Religion and the British Revolutions: The Mind of Samuel Rutherford 152 (Cambridge U. Press 1997).
11. One commentator has designated Lex, Rex as “the most notable English expression of classic Reformed political thought in the seventeenth century.” J.F. Maclear, Samuel Rutherford: The Law and the King, in Calvinism and the Political Order, Religion and the British Revolutions: The Mind of Samuel Rutherford, at 86.
12. Coffey, Religion and the British Revolutions: The Mind of Samuel Rutherford, at 158. Coffey's thorough and scholarly work is the only modern intellectual biography of Rutherford, and fills a significant gap.
13. See e.g. Quentin Skinner, The Foundations of Modern Political Thought (2 vols.) (Cambridge U. Press 1978).
14. Though Skinner does not discuss Rutherford in particular, he does explore in great detail a long line of Calvinist theorists—in the mainstream of which Rutherford took his own place. See Calvinism and the Theory of Revolution, id. at vol. 2, pt. 3, 189.
15. Skinner's account of the development of Calvinist political theory acknowledges the tradition's influence on the emergence of modern political thought, as characterized by Locke and others. He asserts, however, that it is inaccurate to view modern liberal constitutionalism as directly derived from Calvinism. For the Calvinists had merely borrowed from much earlier sources. Id. at 347–348.
16. Indeed, Skinner concludes “that the main foundations of the Calvinist theory of revolution were in fact constructed entirely by their Catholic adversaries.” Id. at 321.
17. See Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge U. Press 1979).
18. All citations to Locke's Two Treatises refer to the text edited by Peter Laslett: John Locke, Two Treatises of Government (Cambridge U. Press 1988).
19. Laslett's “Introduction”, id. at 45–66
20. contains a thorough and convincing account of the problems associated with the dating of the Two Treatises, concluding that the work's “origin belongs to the autumn and winter of 1679–80, exactly a decade earlier than it is traditionally supposed to have been written”—with the Second Treatise, in significant part, predating the First: “Two Treatises is an Exclusion Tract, not a Revolution Pamphlet.” Id. at 61.
21. For an influential and persuasive challenge to this dating, see Richard Ashcraft, Revolutionary Politics & Locke's “Two Treatises of Government” (Princeton U. Press 1986).
22. For variations on Ashcraft's thesis, see John Marshall, John Locke: Resistance. Religion and Responsibility (Cambridge U. Press 1994)
23. David Wootton, John Locke: Socinian or Natural Law Theorist? in Religion, Secularization and Political Thought: Thomas Hobbes to J.S. Mill 39 (J. Crimmins ed., Routledge 1989).
24. Edward S. Corwin, The “Higher Law” Background of American Constitutional Law 42 (Cornell U. Press 1955).
25. David Wooton identifies the context for Rutherford's relatively conservative position in Maxwell's attempt to drive a wedge down the middle of the parliamentarian camp. Either the Parliamentarians “must either maintain that the people as a multitude of equals had never alienated their ultimate authority”—i.e. a position Locke would later occupy in the Second Treatise—or accept that the term populus must be used in a corporatist, inegalitarian sense alone, and so acknowledge that sovereignty resided in another place—besides Lords and Commons—i.e. with the King. Wootton, Introduction, in Divine Right and Democracy: An Anthology of Political Writing in Stuart England 9, 47 (David Wootton ed., Penguin Books 1986). In this manner was framed the Hobson's choice offered to the opponents of Stuart absolutism in the Sacro-Sancta Regum Majestas. Rutherford aligned his massive erudition against Maxwell, at least in part, to demonstrate the falsity of the dichotomy.
26. Coffey, Divine Right and Democracy: An Anthology of Political Writing in Stuart England
27. I.M. Smart, The Political Ideas of the Scottish Covenanters, 1 History of Pol. Thought 167 (1980), provide helpful and detailed analysis of the overall argument of Lex, Rex, and of the historical and intellectual context for Rutherford's work.
28. J.P. Somerville, Politics and Ideology in England. 1603–1640 at 17 (Longman 1986).
29. Id. For an interesting and helpful discussion of the connections between Calvin, the Puritans and the Natural Law tradition.
30. see A Preserving Grace: Protestants, Catholics, and Natural Law (Michael Cromartie ed., W.B. Eerdmans Pub. Co. 1997).
31. Another contemporary, distinctly Reformed Protestant perspective on natural law theory, that raises questions as to its utility and significance in a fallen world, can be found in Carl F.H. Henry, Natural Law and a Nihilistic Culture, 49 First Things 55 (1995).
32. Wooton, Natural Law and a Nihilistic Culture, 49 First Things, at 27.
33. “As domestic society is by nature's instinct, so is civil society natural in radice, in the root, and voluntary in modo, in the manner of coalescing.” Lex, Rex 1.
34. Id. at 2. Politicians agree to this as an undeniable truth, that as domestic society is natural, being grounded upon nature's instinct, so politic society is voluntary, being grounded on the consent of men; and so politic society is natural, in radice, in the root, and voluntary and free, in modo, in the manner of their union.
35. Id. at 52.
36. Id. at 2.
37. Id. at 51.
38. Id. at 52.
39. Id. at 67.
40. Id. at 67.
41. Leo Strauss makes this point in his critique of Locke's theory of the state of nature: Locke's entire political teaching is based on the assumption of a state of nature. This assumption is wholly alien to the Bible …. From the biblical point of view, the important distinction is the distinction, not between the state of nature and the state of civil society, but between the state of innocence and the state after the Fall. Leo Strauss, Natural Right and History 215 (U. Chi. Press 1953).
42. Coffey, citing Rutherford's frequent appeals to the Thomistic maxim, ‘“Grace does not destroy nature but perfects it,’” identifies the statement as a likely key to the entire work.
43. Coffey, Natural Right and History, at 152–153.
44. John Calvin, Institutes of the Christian Religion bk. II, ch. 2, § 15 (Henry Beveridge trans., Calvin Translation Socy. 1845–1846) (available at ).
45. Lex. Rex 67 (footnote omitted).
46. By way of contrast, one of the most formidable and influential Calvinistic forerunners to Lex, Rex, the anonymous Huguenot treatise, Stephanus Junius Brutus, the Celt, Vindiciae, Contra Tyrannos: or concerning the legitimate power of a prince over the people, and of the people over a prince 93 (George Garnett ed. & trans., Cambridge U. Press 1994)
47. remains conspicuously vague as to the origins of this distinction between “MINE” and “THINE.” But the author of the Vindiciae simply did not choose to address questions on nature and the origins of government in much detail at all. The centrality of the notion of Covenant in the Vindiciae was an idea upon which Rutherford also focused. Discussed in more detail in Section III, “Kings and Fathers: The Covenant and Political Authority.”
48. See infra.
49. Lex, Rex 1.
50. Kenneth R. Craycraft, Jr., The American Myth of Religious Freedom 56 (Spence Publg. 1999).
51. Id. at 35.
52. Id. at 36.
53. See generally Marshall, Id., at 289.
54. See Spellman, Id., at 51–202.
55. Spellman seeks to refute the contention of John Passmore and others, “that Locke deliberately embraced the Pelagian heresy” and established the foundations of moral perfectibilism by abandoning orthodox Christian doctrine on human nature. Id. at 3.
56. For a significant and influential variation on this theme, see Dunn, Id.
57. Dunn attempts to explain the ambiguities in Locke's alternation between two uneasily yoked conceptions of morality, one “purely secular, a matter of terrestrial utility,” and the other “heavily concerned with individual salvation,” and “defined largely in theological terms.” Id. at 257–258 (footnote omitted).
58. He “set[s] [it] out crudely” in this way: [T]he Lockean social and political theory is to be seen as the elaboration of Calvinist social values, in the absence of a terrestrial focus of theological authority and in response to a series of particular challenges. The explanation of why it was Calvinist social values which Locke continued to expound is that he was brought up in a Calvinist family. And the reason why he continued to expound them is that his own experience was too dominated by ‘uneasiness, [sic]’ too anxious, to make a self-confident naturalism a tolerable interpretation of the world …. His own psychology and his own biography conspired to retain him within the inherited theological framework and in consequence the honesty and force of his thought were devoted to making such sense as could be made of this framework instead of to replacing it. Id. at 259.
59. Even accounting for the admitted “damaging residual historicism” of such an analysis, Dunn nevertheless concludes that Professor C.B. Macpherson's casting of Locke as the apostle of unbridled “possessive individualism” misses the mark. Id. at 259, 266.
60. The Macpherson thesis neglects Locke's understanding of the “rationality of human existence … as dependent upon the truths of religion. Theology was the key to a coherent understanding of human existence.” Id. at 263.
61. Thus, Dunn says, “a defensible theology is a necessary condition for the cogency of many of his arguments.” Id. In contrast, the analysis here tends to follow the minority positions of Richard Howard Cox, Locke on War and Peace (Clarendon Press 1960)
62. C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Clarendon Press 1962)
63. Leo Strauss, Natural Right and History, The Political Theory of Possessive Individualism: Hobbes to Locke.
64. John Locke, Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Government Chapter V, The Political Theory of Possessive Individualism: Hobbes to Locke [hereinafter Second Treatise].
65. See The Political Theory of Possessive Individualism: Hobbes to Locke for the comments of Leo Strauss on this discrepancy.
66. Passim. Marshall, The Political Theory of Possessive Individualism: Hobbes to Locke.
67. Id. at 146. Marshall gives a detailed contextual account of the evolution of Locke's thinking on the subject of original sin, upon which I have relied here.
68. Second Treatise §§ 124–127.
69. Id. at § 128.
70. Id. at § 27 (emphasis omitted).
71. Laslett, in his introduction, Id., at 101 states that this understanding of property as ultimately rooted in self-ownership “almost contradicts” the workmanship principle.
72. Second Treatise § 6.
73. For an influential study that views Locke through the interpretive grid of the workmanship principle, see James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge U. Press 1980).
74. See Harvey C. Mansfield, Jr., On the Political Character of Property in Locke, in Powers, Possessions and Freedom 23 (Alkis Kontos ed., U. Toronto Press 1979).
75. The comparison may well indicate the direction Locke was leaning in the event of irreconcilable contradiction. Laslett calls these “perhaps the most influential statements he ever made.” Laslett, the Political Character of Property in Locke, in Powers, Possessions and Freedom, at 101.
76. the Political Character of Property in Locke, in Powers, Possessions and Freedom.
77. “The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.” Second Treatise § 124. The same idea is stated in §§ 94, 131,134,138.
78. For a recent account of “the impoverishment of political discourse” that has mushroomed, especially in America, from these simple beginnings, see Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse especially 20–46 (Free Press 1991).
79. Glendon finds a template for the “law-ridden,” rights-saturated contentiousness of modem America in Locke's influential account. She calls into question Locke's fundamental premise “that proprietorship of one's body was a God-given right, as natural as breathing,” contrasting the assertion with a continental European tradition that posits a radically different approach, “that a human body is not subject to ownership by anyone.” Id. at 21.
80. Marshall, Id. at 291 (footnote omitted).
81. First Treatise, § 88, p. 206 (Laslett Cambridge ed.).
82. They regarded the former as applying to the state of unimpaired nature or innocence, while they assigned the latter, with the coercive authority of the law, with bondage and slavery, to the theological condition of fallen nature. Nature, somehow wounded indeed but not destroyed, is therefore still able fully to recognize the first principles of morality and law. But the conclusions from the first principles, which were also plainly intelligible in the state of unimpaired nature, are now attainable only by means of deductive reasoning, since the practical reason is also weakened. Accordingly law takes on a harsh, compulsory character, and the state bears a sword. But the state as such was not regarded by the Fathers as some sort of consequence of sin. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy 32 (Thomas R. Hanley trans., Liberty Fund 1998). Rutherford's placement, after Calvin, of government in the order of creation, discussed above, aligns him with the tradition of this last position.
83. From the outset Rutherford sought to distinguish the God-given institution of government from the human convention or constitution of government by rulers. He did so by use of this same ius naturalelius gentium distinction: government, even by rulers, hath its ground in a secondary law of nature, which the lawyers call secundario jus naturale, or jus gentium secundarium; a secondary law of nature, which is granted by Plato, and denied by none of sound judgment in a sound sense, and that is this, Licet vim virepellere, It is lawful to repel violence by violence. Lex, Rex 3.
84. Because the contemporary situation required him to hone in on the questions surrounding just resistance against tyranny, Rutherford poured great emphasis into the secondary law of Licet vim virepellere, throughout the course of his response to Maxwell. Thus it appears that he grounded government in a conventional arrangement for self-preservation. There certainly was a basis in nature for the individual power of self-preservation. But this natural principle was limited, in that it did not amount to a transferable quantum of rights, so as to introduce the basis for social compact: Individual persons, in creating a magistrate, doth not properly surrender their right, which can be called a right; for they do but surrender their power of doing violence to those of their fellows in that same community, so as they shall not now have moral power to do injuries without punishment; and this is not right or liberty properly, but servitude, for a power to do violence and injuries is not liberty, but servitude and bondage. Lex, Rex 25–26.
85. As John D. Ford concludes, “quite simply, the power of government was distinct from the power of self-defense. Lex, Rex Iusto Posita: Samuel Rutherford on the Origins of Government. in Scots and Britons: Scottish Political Thought and the Union of 1603 at 275–276 (Cambridge U. Press 1994).
86. Numerous writers on natural law note the distinction, and give it varying degrees of emphasis. See e.g. A.P. d'Entreves, Natural Law: An Introduction to Legal Philosophy 24–29 (Hutchinson's U. Lib. 1951).
87. Also, Rommen indicates: The great accomplishment of the Late Scholastics lay in the domain of the ius gentium …. Ius gentium in the proper sense is not ius naturale, although the precepts of the latter are evidently valid for the ordering of the community of peoples. Thus differentiated, ius gentium is the quasi-positive law of the international community: it is founded upon custom as well as upon treaty agreements. The basic norm of this positive ius gentium is, besides the material principles of the natural law, especially the axiom, pacta sunt servanda. Natural Law: An Introduction to Legal Philosophy, at 61.
88. See Otto von Gierke, Natural Law and the Theory of Society, 1500–1800 (Ernest Barker trans., Beacon Press 1957).
89. As all of these writers observed, this division was by no means clear and distinct across the spectrum of authors. In fact, the notion of ius gentium as a separate and derivative category distinct from natural law, and distinct from positive law as well, began to disappear. “[T]he tripartite division of law yielded more and more to a simple division between the categories of natural and positive law.” Id. at 38 (footnote omitted).
90. Gierke cites to mBodin, Soto and Suarez and refers to other ecclesiastical legal philosophers as representative of this trend toward simplification. With Grotius comes a clear example of the simple bipartite division of law: Law is either jus naturale, resting on the dictamen rectae rationis, or jus voluntarium, depending on legislative will; and the latter is either humanum or divinum. As for jus gentium, it is a species of jus humanum voluntarium; it is the agreement of positive law as between all or a number of peoples; the Roman conception of jus gentium naturale has hardly any value natural law and positive law are confused in the Roman jus gentium. Id. at 234, n. 27 (citations omitted). For the reasons advanced in this discussion, it appears that it was important for Rutherford to retain the old categories.
91. Id. It is interesting to note that, even in the title of his work, and throughout Lex, Rex, Rutherford aligns himself against the Arminian Grotius, whose Introduction to the Jurisprudence of Holland Richard Tuck designates as a great watershed in the transformation of natural law to modern natural right.
92. As the “true ancestor of all the modem codes which have rights of various kinds at their centre,” the predecessor to the De lure Belli “constitutes the decisive move away from an Aristotelian theory of justice, and is in fact the first reconstruction of an actual legal system in terms of rights rather than laws.” Tuck, Id. at 66.
93. Ford, Id.
94. discussed infra n. 76.
95. On the other hand, Smart's final assessment downplays the importance of Rutherford's distinction: “The vehicular role of the community in rationally instituting government and governors rendered the divine origin of civil authority a more indirect concept in relation to actual rulers, whose lawful power was now theoretically based on human consent as its immediate efficient cause.” Smart, infra at 193. However, Smart's interpretation tends to erode the very careful delineation and systematic ordering of causes that Rutherford himself understands to be a cardinal principle of his method. It also minimizes the covenantal underpinnings of Lex, Rex.
96. In the Letter Concerning Toleration, Locke would open with his discovery that, among the “Marks of Men striving for Power and Empire over one another,” was the multitude of people boasting “of the Orthodoxy of their Faith; (for every one is Orthodox to himself:).” John Locke, A Letter Concerning Toleration 23 (Hackett Publg. 1983).
97. John Locke, First Treatise: The Falfe Principles and Foundation of Sir Robert Filmer, and His Followers, are Detected and Overthrown § 88, A Letter Concerning Toleration [hereinafter First Treatise].
98. Id. at § 86.
99. Id. Laslett notes that this statement, along with the section from which it is taken, represents “Locke's ultimate justification of property, here typified by property in animals.” Id. at notes.
100. “Just like the Fall itself, the punishment for the Fall ceased to be of any significance for Locke's political doctrine.” Strauss, Id. at 216.
101. First Treatise § 58.
102. Id. Laslett notes that this passage “forms an important declaration of the essential lightness of ‘Natural Man’ and reads almost like Rousseau.” Id. at notes. Despite Locke's cushioning the passage with statements from the Old Testament to bolster his position against Filmer, it nevertheless represents an obvious and serious departure from Christian orthodoxy.
103. Second Treatise § 56.
104. Id. at § 57 (emphasis omitted).
105. Lex, Rex 30.
106. Id. at 29.
107. Id. at 30.
108. Similarly, Calvin had drawn a distinction between “the intelligence of earthly things”— for which the light of nature was sufficient, and of “heavenly things”—which required the intervening provision of God's grace. Calvin, Id. at bk. II, ch. 2, § 13. “[M]atters of policy and economy” belonged among the “earthly things.” Id. Thus, “[s]ince man is by nature a social animal, he is disposed, from natural instinct, to cherish and preserve society; and accordingly we see that the minds of all men have impressions of civil order and honesty.” Id. As a consequence, “every individual understands how human societies must be regulated by laws, and also is able to comprehend the principles of those laws.” Id.
109. Lex, Rex 30. Compare e.g. the statements of Calvin on the residual, post-lapsarian integrity of human faculties. This representative passage, the context for which is an extended “Calvinistic” discussion of the effects of the Fall, may evidence some warrant for the claim that the theological term “total depravity” has been subject to serious misunderstandings: Therefore, in reading profane authors, the admirable light of truth displayed in them should remind us, that the human mind, however much fallen and perverted from its original integrity, is still adorned and invested with admirable gifts from its Creator …. How, then, can we deny that truth must have beamed on those ancient lawgivers who arranged civil order and discipline with so much equity? Shall we say that the philosophers, in their exquisite researches and skilful description of nature, were blind?
110. Shall we deny the possession of intellect to those who drew up rules for discourse, and taught us to speak in accordance with reason? Shall we say that those who, hy the cultivation of the medical art, expended their industry in our behalf, were only raving? What shall we say of the mathematical sciences? Shall we deem them to be the dreams of madmen? Nay, we cannot read the writings of the ancients on these subjects without the highest admiration …. Therefore, since it is manifest that men whom the Scriptures term carnal, are so acute and clear-sighted in the investigation of inferior things, their example should teach us how many gifts the Lord has left in possession of human nature, notwithstanding of its having been despoiled of the true good. Calvin, Id. at bk. II, ch. 2, § 15.
111. Lex, Rex 2.
112. Id. at l.
113. Thus, Rutherford summarized the argument of the response to Question II: “God hath immediately by the law of nature appointed there should be a government, and mediately defined by the dictate of natural light in a community, that there shall be one or many rulers to govern a community.” Id. at 3.
114. And, again, “power of government is immediately from God, and this or that definite power is mediately from God, proceeding from God by the mediation of the consent of a community.” Id.
115. Ford, Id. at 280–281.
116. Id. at 264.
117. (quoting John Corbet, The Ungirding of the Scottish Armour 29 (Socy. of Stationers 1639)
118. Political community could not be rooted in a natural power of self-preservation in individuals, for “not one single man … [had] in them formally any ray of royalty or magistratical authority.” Lex, Rex 25. But what applied to individuals qua sole actors did not hold true for the already-constituted aggregate community. The natural constitutive power of government resided in the community of men, “combined in a city or society.” Aristotle, Politics 1.2.1252a24–33, 1.2.1252b27–30, in The Politics of Aristotle 9, 11 (Peter L. Phillips Simpson trans., U. N.C. Press 1997).
119. Aristotle had certainly recognized a principle of communal self-preservation as critical in the formation of governments.82 And more importantly, he had also emphasized definite and critical limitations on its adequacy in accounting for the institution and right ordering of government. Id. at 3.9.1280a31–1281al, 92–94. Politics 3.9.1280a31–1281al (Simpson ed. 92–94).
120. In question XXV, as Rutherford opened his exposition of the “supreme law”—the Ciceronian precept, salus populi, suprema lex—he quoted Aristotle's principle of order and method as the origin of this law's fundamental importance. Lex, Rex 119.
121. As the whole is greater than the parts, and the cause greater than the effect, so the people constituted “the first author, fountain and efficient under God, of law and king.” Id. Self-preservation had a place in the formation of political community, but it was a subordinate cause, insufficient for a satisfactory accounting and ordering of the whole. Furthermore, “Rutherford, quite unlike Locke, did not believe that tyranny dissolved the constitution and placed men back in the state of nature with a private right to resist violence.” Coffey, Lex, Rex at 177.
122. Lex, Rex 33.
123. Id. at 38.
124. Coffey, Id. at 163.
125. Second Treatise § 22 (emphasis omitted).
126. Id. at § 23 (emphasis omitted).
127. Id. at § 24 (emphasis in original).
128. Id. at § 7.
129. Marshall posits Locke's conscious rejection of a presbyterian theory of political authority—espoused by the likes of Rutherford—as a practical conduit to Locke's own “strange doctrine”: Most independents and presbyterians [, including Rutherford, as we have seen,] had not chosen … to support an individual generation of this power [to rule], and had [strongly] efended … the divine communication of this power, although seeing it as communicated directly by God to the political society that was instituting government rather than as communicated directly to its rulers. Locke's long-standing tolerationist commitments and stress upon the secular and instrumental nature of political society would probably have made this option less attractive. Marshall, Id. at 210. Marshall goes on to connect Locke's notion of the origins of government as “an individual executive power that was transferred to the political society and thus to the government” to earlier formulations by Grotius and Almain. Id.
130. Strauss, Id. at 181.
131. Strauss is here referring to the innovations of Hobbes. His remarks, in my estimation, apply equally well to Locke at this point. Indeed, it is Strauss' contention that it is Hobbes “whom Locke tacitly follows,” though the two theorists may ultimately vary in the conclusions they draw from their mutual premises. Id. at 222.
132. “[T]he people … have an active power of ruling and directing themselves toward the intrinsical end of human policy, which is the external safety and peace of a society, in so far as there are moral principles of the second table, for this effect, written in their heart.” Lex, Rex 33.
133. Second Treatise § 31.
134. Richard H. Cox, Locke on War and Peace 40–41 (Clarendon Press 1960).
135. Cox uses this example to illustrate the manner in which Locke's peculiar use of authority serves as a facade, paying lip service to authority—Richard Hooker, ancient history, in this instance, the Bible—in order to subvert it. Id. at 35–44.
136. A similar thrust comes through in the gloss Locke puts on the divine warrant for human dominion over the earth, (Gen 1:26): “God, by commanding to subdue, gave Authority so far to appropriate.” Second Treatise § 35.
137. Lex, Rex 1.
138. Coffey, Lex, Rex, at 3.
139. Cox, Lex, Rex, at 104 (footnote omitted).
140. Cox gives a thorough, convincing account of the subtle transformation of Locke's account of nature that can only be briefly and inadequately summarized here. Id. at 1–105.
141. Maclear remarks, “the heart of Rutherford's case lay in the doctrine of the covenant.” Maclear, Id. at 75.
142. Id.
143. See Brutus, Id.
144. See Skinner, Id. at vol. 2, 324–334.
145. Skinner sees a clear disjunction between the two types of covenant. Id. at 329–332.
146. But this appears to me to read too much of a modern liberalism back into earlier centuries. On the other hand, it must be said that the author of the Vindiciae does exhibit a “studied vagueness about how individuals came together to form the people.” George Gamett, Editor's Introduction, in Vindiciae Contra Tyrannos. Id. at xxxv.
147. But Gamett also emphasizes that “the starting point in his analysis of the second, secular part of the covenant is a strikingly Thomist conception of natural law, as divine law was of the first.” Id. This suggests an essential complementarity, clearly rooted in the divine order.
148. Rutherford explores this second covenant in detail in the discussion to Question XIV. Lex, Rex 54–62.
149. It is the very means by which he connects the second covenant to the ruler's divine duties and obligations that makes this, perhaps, the most unpalatable aspect of Rutherford's argument for modern sensibilities: The king, as a man, is not more obliged to the public and regal defence of the true religion than any other man of the land; but he is made by God and the people king, for the church and people of God's sake, that he may defend true religion for the behalf and salvation of all. Id. at 56.
150. Rutherford followed the discussion mentioned in the preceding note with a treatment of the analogy of princes to fathers, interpreting the 5th commandment. (Question XV). Id. at 62–64.
151. See infra n. 111.
152. This was followed, (in Question XVII), with an argument favoring a view of the prince's power as the “fiduciary and ministerial power of a tutor, husband, patron, minister, head, father of a family, not of a lord or dominator.” Id. at 69–72.
153. In Locke's words: The only way whereby any one devests himself of his Natural Liberty, and puts on the bonds of Civil Society is by agreeing with other Men to joyn and unite into a Community, for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any that are not of it. Second Treatise § 95 (emphasis omitted).
154. But see infra n. 130 and corresponding text.
155. Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the American Founding 36 (La. St. U. Press 1990) (emphasis omitted).
156. Lex. Rex 62.
157. Id. at 64.
158. Id. at 62. I assert, first, that though the Word warrant us to esteem kings fathers, … yet are not they essentially and formally fathers by generation; … and yet are they but fathers metaphorically—by office, because they should care for them as fathers do for children, and so come under the name of fathers in the fifth commandment. Id.
159. Following the lead of Calvin, the Westminster Divines—among whose number Rutherford took his place in 1643, as a member of the Scottish delegation—had understood the text to apply to all forms of legitimate earthly authority. The Larger Catechism of 1648, for instance, states in the answer to question 124, that “By father and mother, in the fifth commandment, are meant, not only natural parents, but all superiors in age and gifts; and especially such as, by God's ordinance, are over us in place of authority, whether in family, church, or commonwealth.” Westminster Confession of Faith 209–210 (Free Presbyterian Publications 1995).
160. George Lawson, Rutherford's English contemporary, stated similarly that “The fundamentall Charter of all civil Majestie, is the fifth Commandment, taken in a large sense, and understood by other Scriptures, which speak more expressly and distinctly of civil Government.” Tuck, Westminster Confession of Faith, at 144–145.
161. (quoting George Larson, Politico Sacra & Civilis 45 (London, 1660)).
162. Lex, Rex 62.
163. Id. Rutherford gave the example of judges and pastors as other types of “fathers” in this “metaphorical” sense.
164. Id. at 140; see 141–142.
165. For a modern explication of the Puritan and Calvinistic notion of contiguous, inter-locking “spheres of authority,” see Abraham Kuyper, Lectures on Calvinism (Win. B. Eerdmanns Co. 1931).
166. In many different directions we see … that sovereignty in one's own sphere asserts itself—1. In the social sphere, by personal superiority. 2. In the corporative sphere of universities, guilds, associations, etc. 3. In the domestic sphere of the family and of married life, and 4. In communal autonomy. In all these four spheres the State-government cannot impose its laws, but must reverence the innate law of life. God rules in these spheres, just as supremely and sovereignly through his chosen virtuosi, as He exercises dominion in the sphere of the State itself, through his chosen magistrates. Id. at 96–97.
167. Kuyper saw Calvinism as the source of limitation and restraint on the “absolutistic stream,” a feat its proponents achieved “by deducing those rights and liberties of social life from the same source from which the high authority of the government flows—even the absolute sovereignty of God. From this one source, in God, sovereignty in the individual sphere, in the family and in every social circle, is just as directly derived as the supremacy of State authority.” Id. at 98.
168. “I judge [aristocracy and democracy] are not governments different in nature, if we speak morally and theologically, only they differ politically and positively; nor is aristocracy any thing but diffused and enlarged monarchy, and monarchy is nothing but contracted aristocracy, even as it is the same hand when the thumb and the four fingers are folded together and when all the five fingers are dilated and stretched out.” Lex, Rex 5.
169. Id.
170. Id. at 25.
171. “But these two Powers, Political and Paternal, are so perfectly distinct and separate; are built upon so different Foundations, and given to so different Ends, that every Subject that is a Father, has as much a Paternal Power over his Children, as the Prince has over his.” Second Treatise § 71 (emphasis omitted).
172. First Treatise §§ 62–66.
173. If Honour thy Father and Mother signifies the duty we owe our Natural Parents, as by our Saviour's Interpretation, Matth. 15.4 …, then it cannot concern Political Obedience, but a duty that is owing to Persons, who have no Title to Sovereignty, nor any Political Authority as Magistrates over Subjects. For the Person of a private Father, and a Title to Obedience, due to the Supreme Magistrate, are things inconsistent; and therefore this Command, which must necessarily comprehend the Persons of our Natural Fathers, must mean a duty we owe them distinct from our Obedience to the Magistrate, and from which the most Absolute Power of Princes cannot absolve us. Id. at § 66 (emphasis omitted).
174. Id. at § 64, notes.
175. Tyndale argues in a precisely similar manner in his Obedience of a Christian Man, 1528(1848).” Id.
176. See Obedience of a Christian Man, n. 111.
177. David Foster, Taming the Father: John Locke's Critique of Patriarchal Fatherhood, 56 Review of Politics 641 (1994).
178. Second Treatise §§ 81–83.
179. id. at § 82.
180. Id. (emphasis omitted).
181. id. at § 83.
182. But see infra n. 144.
183. See Gen 3: 18–24
184. Mai 2: 10–16
185. Eph 5: 21–33.
186. Robert A. Goldwin, John Locke, in History of Political Philosophy 476, 508–509 (Leo Strauss & Joseph Cropsey eds., 3d ed., U. Chi. Press 1987).
187. Second Treatise §§ 79–80.
188. Maclear, Second Treatise, at 75.
189. See e.g. Second Treatise.
190. John Harrison & Peter Laslett, The Library of John Locke 76 (Oxford U. Press 1965).
191. Second Treatise § 106.
192. The discussion in this section is not meant to suggest a simple uniform progression from the medieval and religious covenant to more modern notions of compact and contract. See e.g. Introductory Essay in Colonial Origins of the American Constitution: A Documentary History xx (Donald S. Lutz ed.’, Liberty Fund 1998).
193. John Dunn, Contractualism, in The History of Political Theory and Other Essays 39, 40–50, 53–56 (Cambridge U. Press 1996) finds the seeds of Locke's seventeenth-century contractualism in the steady historical progress of contract through ancient, medieval and Reformation periods.
194. Locke deployed the idea of a compact as foundation for governmental authority not to explain men's capacity to live with one another in peace at all but to set clear and decisive limits to the degree of their rightful subjection to any possible human ruler. His two great works, [the Treatises and the Letter Concerning Toleration], provide the most powerful seventeenth-century statement of the restrictions on the legitimate authority of human rulers over the religious and secular rights of their subjects. These restrictions are defined by the divine law of the Creator of the world and by the peculiar religious requirements of the Christian revelation. Id. at 53–54.
195. But see e.g. Sandoz, Id. at 85–98, especially p. 97, who, in examining the development of covenantal and constitutional principles up to 1776, stresses the feudal and personal character of “the bonds of faith” between people and king. Certainly with Locke, the interpersonal web of hierarchical relationship at the base of the medieval covenant, sourced in God, is consciously, deliberately attenuated.
196. A.J. Conyers, The Long Truce: How Toleration Made the World Safe for Power and Profit 145 (Spence Publg. Co. 2001).
197. Arthur W. Wainwright, Introduction, in A Paraphrase and Notes on the Epistles of St. Paul to the Galatians, 1 and 2 Corinthians, Romans, Ephesians vol. 1, 1, 15, n. 5 (Arthur W. Wainwright ed., Oxford U. Press 1987).
198. Id. Harrison & Laslett, A Paraphrase and Notes on the Epistles of St. Paul to the Galatians, 1 and 2 Corinthians, Romans, Ephesians, at 76.
199. Cox, A Paraphrase and Notes on the Epistles of St. Paul to the Galatians, 1 and 2 Corinthians, Romans, Ephesians, at xix.
200. The Records of the Federal Convention of 1787 vol. IV, General Index, 209 (Max Farrand ed., Yale U. Press 1966).
201. James Wilson, On Municipal Law, in American Political Writing during the Founding Era: 1760–1805 vol. D, 1293 (Charles S. Hyneman & Donald S. Lutz eds., Liberty Press 1983).
202. The index here also refers to Samuel Rutherford, id. at 1413.
203. (J. Bentham 1754–1756).
204. It seems that the ambiguities of Locke's works have provided a high volume of grist for multitudes of academic mills. It would be impossible to give here a complete list. In addition to the works referenced here, Dunn, Laslett, Macpherson, Marshall, Sandoz, and Strauss, among the most influential and significant recent studies are: Richard Ashcraft, Locke's Two Treatises of Government (Allen & Unwin 1987)
205. Revolutionary Politics & Locke's “Two Treatises of Government”, Locke's Two Treatises of Government
206. James Tully, A Discourse on Property: John Locke and His Adversaries (Cambridge U. Press 1980).
207. It must be said, however, that Wooton's anthology alone demonstrates the wide range of opinion among Puritan and other contemporary theorists. As Wooton remarks in the introduction, the Levellers were putting forward a theory of popular sovereignty very similar to Locke's within the same decade of the publication of Maxwell's Sacro-Sancta and of Lex, Rex. Wooton, Divine Right and Democracy, A Discourse on Property: John Locke and His Adversaries, at 50–55. The Puritan movement combined a mix of influences, some more well-grounded in the tradition of Augustine and Aquinas than others.
208. The phrase comes from the full title of Hobbes' Leviathan (1651): Leviathan, or, The Matter. Form and Power of a Common-wealth Ecclesiastical and Civil (Printed for Andrew Crooke 1651).
209. One commentator has designated Lex, Rex as “the most notable English expression of classic Reformed political thought in the seventeenth century.” J.F. Maclear, Form and Power of a Common-wealth Ecclesiastical and Civil, at 86.
210. Richard Tuck, for instance, places Rutherford as close as any of the Calvinist Presbyterians to a modem, radical theory of natural rights. Natural Rights Theories, Form and Power of a Common-wealth Ecclesiastical and Civil, at 143–146.
211. Tuck did concede that Rutherford's persistence in “the idea of the special, divine origin of governmental dominium,” kept him outside the proper boundaries of radicalism. Id. at 145.
212. Tuck, Natural Rights Theories 143–146.
213. In stressing Rutherford's Calvinism along the lines of its Aristotelian and Thomistic foundations, I have suggested that far more than “the principle of interpretive charity” must be brought to bear to explain his exclusion from the camp of the radical proponents of modern natural rights theory. Id. at 146.
214. As indicated above, Ford's essay demonstrates the careful precision with which Rutherford sought to carve out his position, as against both absolutists and radicals. After the innovations of Grotius, this made Rutherford something of a reactionary by 1644. As Tuck explains, Grotius had already made the notorious, yet ultimately far-reaching claim for his own theory of right, that it must be true, even granting, ‘“what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs.’” Id. at 76.
215. (quoting Hugo Grotius, The Rights of War and Peace, in Three Books: Wherein are Explained, the Law of Nature and Nations, and the Principal Points Relating to Government xix (Jean Barbeyrac trans., Printed for W. Innys & R. Manby, J. & P. Knapton, D. Brown, T. Osborn, & E. Wicksteed 1738))
216. Coffey remarks that Tuck probably neglects this important distinction, (between the law of nature and the secondary ius gentium), in his reading of Lex, Rex on this point. and the Principal Points Relating to Government, at 160, n. 67.
217. Hadley Arkes wisely reminds that perhaps too much explanatory weight has been placed on what is deemed a fundamental division between ancient communitarianism and modern individualism. This ancient-modem division simply cannot account for all of the ills to which modernity is heir. It requires just a moment's reflection to remember that there is no tension here, between the just treatment of the individual and the aggregate good of the community, that was not already contained in that encounter, long before Hobbes, when Abraham negotiated with God over Sodom and Gomorrah: [“]That be far from Thee to do after this manner, to slay the righteous with the wicked, that so the righteous should be as the wicked; that be far from Thee; shall not the Judge of all the earth do justly?[”] [Gen 18.] They may not be, at all times, the best of company, but the late news is that individuals are here to stay. We must suspect that they and their rights were a part of the moral landscape even before historians discovered ‘individualism.’ Hadley Arkes, The Axioms of Public Policy, in Natural Law and Contemporary Public Policy 109, 132 (David F. Forte ed., Georgetown U. Press 1998).My suggestion, that differences in theological and philosophical presuppositions tend to produce vastly differing results in the practical affairs of men, may assist in making sense of the ancient-modem controversy by showing the overall imbalance in favor of radical individualism that has ensued in the modem era. Correcting the imbalance certainly would not mean the eradication of individual rights or interests, but merely set them in the proper ontological context.
218. Spellman notes the “distinctly secular tone of the [Second Treatise].” W.M. Spellman, John Locke 107 (St. Martin's Press 1997).
219. And while his earlier review of Locke's writings in relation to “the problem of depravity” does demonstrate Locke's ongoing absorption with traditional Christian notions of original sin, Spellman's emphasis is to vindicate Locke's epistemology in the Essay. He downplays the Second Treatise, while leaving out any mention of the First Treatise and its treatment of nature. See Spellman, Locke and the Problem of Depravity, John Locke.
220. In this way, Locke seems to present a moderated, and certainly hesitant, stage in the unfolding of what Eric Voegelin called “the inner logic of the Western political development from medieval immanentism through humanism, enlightenment, progressivism, liberalism, positivism, into Marxism.” Eric Voegelin, The New Science of Politics: An introduction 125 (U. Chi. Press 1952).
221. One does not have to accept all of the peculiarities of Voegelin's account of the progressive “Gnostic” “redivinization of society”—or its applicability to Locke—to see how “the predicament of a fall from faith in the Christian sense” might have contributed to the modernistic core of Locke's political philosophy. Id. at 123, 124.
222. For a recent article tracing the trajectory of Locke's arguments in the Letter Concerning Toleration, and concluding that Locke's position on church-state separation bears a remarkable affinity with the civil religion of Rousseau in The Social Contract, see the analysis of David McCabe, John Locke and the Argument Against Strict Separation, 59 Review of Politics 233 (1997). Both civil religions were prepared to jettison Christian teachings deemed to be inconvenient to the establishment of a viable and stable political community.
223. Similarly, Conyers notes J.S. Mill's “contempt for the Calvinists” that animates so much of his utilitarian vision of toleration. Conyers, Review of Politics, at 161.
224. Sandoz's examination of “political theory, religion, and the American Founding,” contrasts “the impoverished conception of the political community in Hobbes, Locke, [and others] with the reach of the parallel notion in medieval consitutionalism.” Sandoz, Review of Politics, at 26.
225. His thesis is that the American interpretation of existence, as heir to both the older transcendentalist experiences incorporated into and symbolized by the ‘Ancient Constitution’ and the modern immanentist symbolisms of the ‘market society,’ has attempted a reconciliation of these two complexes of thought and has oscillated between them. Id. In this context, Sandoz emphasizes, as well, Ralph Barton Perry's designation of the Puritan movement as a renewal of “medieval Christianity.” Id. at 99.
226. (quoting Ralph Barton Perry, Puritanism and Democracy 82–83 (Vanguard Press 1944)).
227. The unhistorical enlistment of Lex, Rex in the service of contemporary political controversies has taken some ironic twists. Coffey, Puritanism and Democracy, at 9–15, 217–218.
228. Conyers, Puritanism and Democracy, at 148.
229. In the interest of time and space, I have not addressed later stages of Locke's “intellectual and spiritual pilgrimage,” where, for instance, an “increased importance attached to revelation by contrast with reason,” and where “[s]ome of his ideas conflict with his previous positions.” Arthur W. Wainwright, Puritanism and Democracy, at 59, 58–59.
230. Christopher Lasch, The Revolt of the Elites and the Betrayal of Democracy 246 (W.W. Norton & Co. 1995).
231. George Parkin Grant, English-Speaking Justice 61 - 62 (U. Notre Dame Press 1985).