8. The Doctrine of the Social Contract

The humanists and the doctrine of the social contract, man as the measure of things
The origin of the doctrine of natural rights
The natural rights of the cynics and stoics till Zeno
Natural right and Absolutism, the time of the social Utopias
Thomas More and Francois Rabelais
The monarchomachi languet's vindiciae contra tyrannos
The Dutch Protective League
Jesuitism and temporal power
Francisco Suarez and the "divine right of kings." Juan de Mariana and the doctrine of Tyrannicide
La Boetie concerning voluntary serfdom

George Buchanan and the doctrine of "the people's will."
Thomas Hobbes' theory of the state
The Leviathan. Independents and Presbyterians, John Milton and Puritanism
The doctrine of John Locke concerning people and government
Influence of the doctrine of natural rights on the development of international law

The Renaissance, with its strong pagan tendency, reawakened men's interest in earthly affairs and again turned their minds to questions which had scarcely been discussed since the decline of the ancient civilisation. The great historical significance of the rising humanism lay in the fact that its leaders broke away from the spiritual bondage and the dead formalistic rubbish of scholasticism. They again made man and his social environment the centre of their speculation, instead of losing themselves in the maze of sterile theological concepts, as the leaders of victorious Protestantism had done in the northern lands. Humanism was no popular movement but an intellectual trend, which affected almost all European countries and furnished the basis of a new concept of life. That later, even this stream sanded up and became a matter of dry as dust closetlearning, as it gradually lost its relation to real life, does not negate its original purpose.

Interest in the natural phenomena of life again directed men's attention to the social groupings of people, and thus the old ideas of natural rights were revivified. While the ever encroaching absolutism strove to confirm its power by the doctrine of the divine right of kings, the whole-hearted and halfhearted opponents of absolute state power appealed to "the natural rights of men," a protection also guaranteed by the socalled "social contract." Thus, quite naturally, they again approached the question which had already occupied the ancient thinkers and which now received new significance by the rediscovery of the ancient civilisation. They sought to make clear the position of the individual in society and to discover the origin and significance of the state. However inadequate these attempts may appear today, they nevertheless drew greater attention to the subject, and an attempt was made to understand the relationship of the citizen to the state and to the existing rulership of the people.

As most of the thinkers influenced by humanistic ideals saw in the individual "the measure of all things," they recognised society not as a definite organism obeying its own laws, but as an enduring union of individual men who for one reason or another had associated themselves. From this arose the idea that the social life of men was founded on a definite contractual relationship, supported by ancient and inalienable rights which had validity even before the evolution of organised state power, and served as a natural basis for all communal relationships of men. This idea was the real core of the doctrine of natural rights which again began to flourish at that time.

Under the pressure of the ever encroaching social inequalities within the Greek city-republics there had arisen in the fifth century before our era the doctrine of "the state of nature," sprung from the belief in a traditional "Golden Age" when man was still free and unhindered in the pursuit of happiness before he gradually came under the yoke of political institutions and the concepts of positive law arising therefrom. From this concept there developed quite logically the doctrine of "natural rights" which was later on to play so important a part in the mental history of European peoples.

It was especially the members of the Sophist school who in their criticism of social evils used to refer to a past natural state where man as yet knew not the consequences of social oppression. Thus Hippias of Elis declares that "the law has become man's tyrant, continually urging him to unnatural deeds." On the basis of this doctrine Alkidamas, Lykophron and others advocated the abolition of all social prerogatives, condemning especially the institution of slavery, as not founded upon the nature of man, but as arising from enactments of men who made a virtue of injustice. It was one of the greatest services of the much maligned Sophist school that its members surmounted all national frontiers and consciously allied themselves with the great racial community of mankind. They felt the insufficiency and the spiritual limitations of the patriotic ideal and recognised with Aristippus that "every place is equally far from Hades."

Later, the Cynics, on the basis of the same "natural life" concept, reached similar results. From the little that has been preserved of their doctrines it is clearly apparent that they viewed the institutions of the state very critically and regarded them as being in direct conflict with the natural order of things. The tendency toward world citizenship was especially marked among the Cynics. Since their ideas were opposed to all artificial distinctions between the various classes, castes and social strata, any boast of national superiority could but appear senseless and foolish to them. Antisthenes derided the national pride of the Hellenes and declared the state as well as nationality to be things of no importance. Diogenes of Sinope, the "sage of Corinth" who, lantern in hand, looked in broad daylight for an honest man, likewise had no regard for "the heroic weakness of patriotism" (as Lessing has called it), since he saw in man himself the source of all aspiration.

The loftiest conception of natural law was formulated by the school of the Stoics, whose founder, Zeno of Kittion, rejected all external compulsion and taught men to obey only the voice of the "inner law" which was revealed in nature itself. This led him to a complete rejection of the state and all political institutions, and he took his stand upon complete freedom and equality for everything that bears the human form. The time in which Zeno lived was very favourable to his cosmopolitan thought and feeling, which knew no distinction between Greeks and barbarians. The old Greek society was in full dissolution, the arising Hellenism, which especially furthered the plans for political unification of Alexander of Macedonia, had greatly changed the relationship of the nations and had opened completely new vistas.

Man's social instinct, having its root in communal life and finding in the sense of justice of the individual its completest ethical expression, Zeno combined, by sociological synthesis, with man's need for personal freedom and his sense of responsibility for his own actions. Thus he stood at the opposite pole from Plato, who could conceive a successful communal life of men only on the basis of a moral and intellectual restraint imposed by external compulsion, and who in his views was rooted as deeply in the narrow limits of purely nationalistic concepts as was Zeno in his concept of pure humanity. Zeno was at the spiritual zenith of the tendency which saw in man "the measure of all things," just as William Godwin, two thousand years later, marked the high tide of another mental tendency which strove to "limit the activity of the state to a minimum."

The doctrine of natural rights, rescued from oblivion by the rising humanism, played a decisive part in the great battles against absolutism and gave the struggles against princely power their theoretical foundation. The leaders in these struggles proceeded from the following assumptions: since man possessed from antiquity native and inalienable rights, he could not be deprived of them by the institution of organised government, nor could the individual resign these rights. On the contrary, these rights had to be established by covenant, in agreement with the representatives of the state's power, and openly acknowledged. From this mutual agreement resulted quite selfevidently the relationship between state and people, between ruler and citizen.

This concept, which although it could make no claim to historical foundation, 1 and rested only on assumption, nevertheless dealt the belief in the divine mission of the rulerwhich found its highest expression in the "divine right of kings" of victorious absolutisma powerful blow, which in the course of events proved decisive. If the position of the head of the state was based on a covenant, it followed that the ruler owed responsibility to the people, and that the alleged inviolability of royal power was a fairy tale which had been quietly permitted to pass as truth. But in this event the relation between ruler and people did not rest on the command of a central power with which the people had, for good or ill, to be content. The power of the ruler was confronted by the inalienable rights of the individual, which imposed certain limitations on the arbitrary decisions of the head of the state, such that an equalisation of the forces in society was made possible.

The destructive consequences resulting from every misuse of power had been recognised; hence the attempt had been made to bridle it by tying it to the natural rights of the people. This idea was doubtless correct, although the means whereby a solution of the inner discord was attempted always proved insufficient, as subsequently became still more clear. Between might and right yawns an abyss which cannot possibly be bridged. While they dwell in the same house this unnatural relationship must always lead to inner friction by which men's peaceful communal life is continually threatened. Every possessor of the state's power must feel the limitation of his power as an uncomfortable fetter on his egotistic ambition; and wherever the opportunity offers, he will attempt to restrict the people's rights, or completely to abolish them if he feels strong enough to do so. History during the last four centuries of struggle for and against the limitation of the state's supreme power speaks an eloquent language, and recent historical events in most of the European countries show with frightful clearness that the struggle is a long way from having reached its end. The uninterrupted attempts to keep the state's power within certain limits have always led logically to the conclusion that the solution of this question is not sought in the limitation of the principle of political power, but in its overthrow. This exhausts the last and highest results of the doctrine of natural rights. This also explains why natural rights have always been the thorn in the flesh of representatives of the unlimited power idea, even whenlike Napoleon Ithey owe their rise to this doctrine. Not without reason this revolutionborn politician of the highest rank remarked:

The men of "natural right" are guilty of all. Who else has declared the principle of revolution to be a duty? Who else has flattered the people by endowing it with a sovereignty of which it is not capable? Who else has destroyed respect for the law by making it dependent on an assembly that lacks all understanding of administration and law, instead of adhering to the nature of things?

Prominent representatives of humanism attempted to formulate their ideas of natural rights in fictitious communal systems, and in these descriptions, fantastic as they were, there was mirrored the spirit of the time and the concepts which animated it. One of the most important Humanists was the English statesman, Thomas More, a zealous defender of natural right, whom Henry VIII later beheaded. Animated by Plato's Politeia and, more especially, by Amerigo Vespucci's description of newly discovered lands and peoples, More, in his Utopia, describes an ideal state whose inhabitants enjoy a community of goods and by wise and simple legislation contrive a harmonious balance between governmental control and the native rights of the citizens. This book became the starting point for a whole literature of social utopias, among which Bacon's New Atlantis and the City of the Sun of the Italian patriot, Campanella, were especially significant.

A great advance was made by the French Humanist, Francois Rabelais, who in his novel, Gargantua, describes a small community, the famous Abbey of Theleme, of wholly free men who had abolished all compulsion and regulated their lives simply by the principle, "Do what thou wilt."

. . . because free men, well born, well educated, associating with decent company, have a natural instinct that impels them to virtuous conduct and restrains them from vice which instinct they call honour. Such people when oppressed and enslaved by base subjection and constraint forget the noble inclination to virtue that they have felt while free and seek merely to throw off and break the yoke of servitude; for we always try to do what has been forbidden and long for what has been denied.

The idea of natural rights was strongly echoed in the Calvinistic and Catholic literature of that period, although here the political motives of position became clearly apparent. First, the French Calvinist, Hubert Languet, in his disquisition, "Vindiciae contra Tyrannos", the political creed of the Huguenots, develops the thought that after the pope lost dominion over the world, power was not simply transferred to the temporal rulers, but reverted into the hands of the people. According to Languet the relationship between prince and people rests on a reciprocal agreement which obligates the ruler to regard and protect certain inalienable rights of the citizens, among which freedom of belief is the most important; for it is the people who make the king, not the king who makes the people. This covenant between the king and the people need not necessarily be confirmed by an oath nor formulated in a special document; it finds its sanction in the very existence of the people and the ruler and has validity as long as both exist. For this reason the ruler is responsible to the people for his actions and, if he tries to abridge the freedom of conscience of the citizens, he may be judged by the noble representatives of the people, excommunicated and killed by anyone without fear of punishment.

Inspired by the same idea the Netherland provinces of Brabant, Flanders, Holland, Zeeland, Guelderland, and Utrecht convened in 1581 in The Hague and formed an offensive and defensive league. They declared all relationships existing up to that time between them and Philip II of Spain null and void, as the king had broken the covenant, trodden the ancient rights of the inhabitants under foot, and behaved like a tyrant who ruled over the citizens as over slaves. In this sense the famous Act of Abjuration declares:

Everyone knows that a prince has been designated by God to protect his subjects as a shepherd does his flock. But when a prince no longer fulfils his duty as protector, but oppresses his subjects, destroys their old liberties, and treats them as slaves, he is no longer a prince, but is to be regarded as a tyrant. As such, the estates of the land can according to right and reason dethrone him and elect another in his place.

The monarchomachi of Calvinism were not alone in maintaining this standpoint, so dangerous to temporal power. The counter-Reformation organised by the rising Jesuits reached similar conclusions, although from different premises.

According to the doctrines of the church, monarchy was a God-instituted state form, but the temporal ruler was given his power only to protect the cause of the faith, which found its expression in the doctrines of the church. Hence, Providence had set the pope as ruler over the kings, just as these had been set as rulers over the people. And just as the people owed the prince unqualified obedience, so the commands of the pope were the highest law for the rulers. But now the spreading Protestantism had destroyed the old picture, and veritable heretics sat on princely thrones as representatives of the highest powers of state. Under these circumstances the relationship of the Catholic Church to the temporal power also had to change and take on other forms. Its attempt to adapt its practices to the new social relationships in Europe and to collect its scattered forces into a strong organization ready for action and capable of meeting all demands, had thoroughly revolutionary results. The church's representatives now had no compunctions about flirting temporarily with democratic ideas if their secret aims were thereby furthered.

It was principally the Jesuits who broke ground in this territory. Thus the Spanish Jesuit philosopher, Francisco Suarez, opposed the doctrine of the divine right of kings on fundamental principles and, quite in the sense of the "natural rights" traced the relationship between prince and people to a covenant which imposed on both parties rights and duties. According to Suarez, power cannot naturally remain in the hands of a single individual, but must be partitioned among all, since all men were equal by nature. If the ruler did not conform to the covenant, or even opposed the inalienable rights of the people, the subjects were given the right of rebellion to guard their rights and to prevent tyranny.

It is understandable that James I of England had the principal work of this Spanish Jesuit, written at the instigation of the pope, burned by the hangman, and that he bitterly reproached his colleague on the Spanish throne, Philip II, for having given a home in his land to "such an outspoken enemy of the majesty of kings."

Even further than Suarez went his brother in the "Society of Jesus," Juan de Mariana, who in the sixth chapter of his voluminous work, Historia de rebus Hispaniae, not only justified assassination of the covenantbreaking kings as morally right, but even suggested the weapon with which such murder was to be committed. He had in view here, however, only the secret or open adherents of Protestantism, since he, like his predecessor Suarez, was of the opinion that the prince was, in matters of faith at least, subject to the pope. Thus, for him, the king's heresy was tyranny against the people and relieved the subject of all obligation to the head of the state who, as a heretic, had forfeited his rights. That such ideas had not merely a theoretical significance was proved by the murder of Henry III, and his successor Henry IV, of France, both removed by fanatical adherents of papism. Thus, from both Calvinistic and Catholic sources, the limitation of royal power was advocated, although this was by no means done from a libertarian urge, but from wellunderstood political interests. At a]l events, the advocacy of natural rights from this source could but draw many more adherents to the idea of the abrogation of power; which at the time of the great struggles in France, the Netherlands and England, was of peculiar importance.

The clearly felt necessity for putting certain limits to the power of the state and the recognition of the right of rebellion against the ruler who abused his power and became a tyrant were then, widespread ideas which only lost currency with the final victory of absolutism, but were never quite forgotten. Under the influence of these and similar trends of thought isolated thinkers of that period were led to pursue these things more deeply and to lay bare the roots of all tyranny. The most notable among them was the youthful Etienne de la Boetie, whose sparkling screed, Concerning Voluntary Servitude, was published after his early death by his friend Montaigne. Whether Montaigne did, in fact, make certain alterations in the work, as is often asserted, can probably never be proved. The fact that La Boetie's works played such an important part in the fight against absolutism in France was later almost forgotten, but that in the time of the great revolution it proved its effectiveness anew is the best proof of its intellectual importance.

La Boetie recognised with irresistible clarity that tyranny supports itself less by brutal power than by the deeprooted feeling of dependency of men, who first endow a hollow puppet with their own inherent forces and then, dazzled by this imaginary power, blindly submit themselves to it. This spirit of "voluntary servitude" is the strongest and most impregnable bulwark of all tyranny, and must be overcome; for tyranny would collapse as helpless as a heap of ashes if men would but recognise what lies hidden behind it, and deny obedience to the idol which they have themselves created. Says La Boetie:

What a shame and disgrace it is when countless men obey a tyrant willingly, even slavishly! A tyrant who leaves them no rights over property, parents, wife or child, not even over their own lives what kind of a man is such a tyrant? He is no Hercules, no Samson! Often he is a pygmy, often the most effeminate coward among the whole peoplenot his own strength makes him powerful, him who is often the slave of the vilest whores. What miserable creatures are his subjects! If two, three or four do not revolt against one there is an understandable lack of courage. But when hundreds and thousands do not throw off the shackles of an individual, what remains there of individual will and human dignity? . . . To free oneself it is not necessary to use force against a tyrant. He falls as soon as the country is tired of him. The people who are being degraded and enslaved need but deny him any right. To be free only calls for the earnest will to shake off the yoke. . . . Be firmly resolved no longer to be slaves and you are free! Deny the tyrant your help and, like a colossus whose pedestal is pulled away, he will collapse and break to pieces.

But those individual thinkers who, like La Boetie, dared to touch the most hidden roots of power were few. In general, the road to libertarian concepts of life ran through the various phases of the concept of natural rights, whose supporters always endeavoured to oppose the unlimited power of the head of the state with "the native and inalienable rights of the people," hoping thus to attain to a social balance favourable to the undisturbed development of the conditions of social life. These efforts led later to the well-known demands of liberalism which, no longer satisfied with the limitation of personal power, strove to limit the power of the state to a minimum, on the correct assumption that the continuous guardianship of the state was just as detrimental to the fruitful development of all creative forces in society as the guardianship of the church had been in previous centuries. This idea was by no means the result of idle speculation, it was rather the tacit assumption underlying every cultural development in history; just as the belief in the foreordained dependence of man on a superterrestrial Providence was always the conscious or unconscious assumption underlying all temporal power.

A prominent pioneer on the long road leading to the limitation of princely power and the formulation of rights of the people was the Scottish humanist, George Buchanan, one of the first to attribute to the question a fundamental importance, independent of the help or harm which the extension or limitation of princely power could do to one creed or another. Buchanan maintained the basic democratic notion that all power comes from the people and is founded in the people. Regarded from this viewpoint the head of the state was under all circumstances subject to the will of the people, and his whole significance exhausted itself in being the first servant of the people. If the head of the state breaks this covenant tacitly agreed upon, he outlaws himself and can be judged and condemned by anyone.

Buchanan gave the relationship between might and right a new and deeper significance. Had he been content merely to assert freedom of conscience in religious matters against the unlimited princely power, the representatives of absolutism might have been willing to accept this limitation. But he dared to declare that all power emanated from the people and that princes were but executors of the people's will; and so doing he turned against himself the irreconcilable enmity of all supporters of hereditary royalty. Thus it was legitimist influences which induced Parliament on two different occasions1584 and I664to suppress Buchanan's work, De Jure apud Scotos. Obeying the same influence, Oxford University burnt the work a hundred years after its publication.

But for absolutism also there arose on English soil a powerful defender In the person of Thomas Hobbes. Hobbes was surely one of the most unique figures in the realm of social philosophic thought, an extremely fruitful and original mind; next to Bacon, perhaps the most versatile mind England ever produced. His name lives in history as the decided champion of philosophical materialism and as an outspoken defender of absolute princely power. Hobbes was, in fact, a stern opponent of all religion in the current sense; for although he principally opposes Catholicism, one feels that he is antagonistic to all revealed religion. There is less justification for the assertion that Hobbes was an unqualified advocate of royal absolutism. The very fact that he traces the state's existence to a contractual relation proves that he was no legitimist. Hobbes was an unqualified exponent of the power principle, but had less in view princely absolutism than the absolute power of the state. In general he gave monarchy the preference, but his later attitude toward Cromwell clearly shows that he was chiefly concerned with the inviolability of the power of the state and less with that of its leaders.

The concept that man was by nature a social creature Hobbes opposed most decidedly. According to his conviction there existed in primitive man no trace of social feeling but solely the brutal instinct of the predatory animal, far from any consideration of the welfare of others. Even the distinction between good and evil, he held, was wholly unknown to man in the natural state. This idea was first brought to man by the state, which thus became the founder of all culture. In his original nature man was not amenable to any social feeling whatsoever, but only to fear, the sole power which could influence his reason. It was from fear that the foundation of the state arose, putting an end to the "war of all against all" and binding the human beast with the chain of the law. But although Hobbes traces the origin of the state to contract, he maintains that the first rulers were given the unlimited power to rule over all others. Once agreed upon, the covenant remains binding for all time to come. To rebel against it is the worst of all crimes, for every attempt in this direction brings into question the permanence of all culture, even of society itself.

The materialist Hobbes, who has been maligned in history as a "radical atheist," was in reality a strictly religious man, but his religion had a purely political character; the God whom he served was the unlimited power of the State. Just as in all religion man becomes ever smaller in proportion as the godhead grows beyond him, until at last God is all, and man nothing, so with Hobbes, viewing the state power as limitless, he degrades man's original nature to the lowest stage of bestiality. The result is the same: the state is all, the citizens nothing. Indeed, as F. A. Lange has very correctly remarked: "The name Leviathan" (the title Hobbes gave to his principal work) "is only too appropriate for this monster, the state, which guided by no higher consideration, like a terrestrial god orders law and justice, rights and property, according to its pleasureeven arbitrarily defines the concepts of good and evil and in return guarantees protection of life and property to those who fall on their knees and sacrifice to it." 2

According to Hobbes, law and right are concepts which make their appearance only with the formation of political society, meaning the state. Hence the state can never transgress against law, because all law originates with itself. The customary law, which is often referred to as natural right, or the unwritten law, may utterly condemn theft, murder and violence as crimes; but as soon as the state commands men to do these acts, they cease to be crimes. Against the state's law even "divine right" has no power, for only the state is qualified to decide concerning right and wrong. The state is the public conscience, and against it no private conscience nor private conviction can prevail. The will of the state is the highest, is the only, law.

Since Hobbes sees in the state only "Leviathan," the beast of whom the Book of Job says, "upon earth there is not his like," he logically rejects all striving of the church for world dominion and denies to the priests in general, and to the pope in particular, any right to temporal power. For religion also is justified for him only as long as it is recognised and taught by the state. Thus, he says, in an especially significant passage in Leviathan: "The fear of unseen powers, whether it be imaginary or whether delivered by tradition, is religion when it is affirmed by the state, and superstition when it is not affirmed by the state."

According to Hobbes the state has not only the right to prescribe for its subjects what they may believe, it also decides whether a belief is religious or only to be regarded as superstitious. The materialist Hobbes, who had no inclination whatever for religion in general, found it quite in order that the government for reasons of state should decide in favour of a certain creed and impose it upon its subjects as the only true religion. It affects one rather curiously, therefore, when Fritz Mauthner opines that Hobbes "goes far beyond the disbelief of the first deists when he demands the submission of the citizens to the state religion, for what he demands is again only obedience to the state, even in religious matters, not to God." 3

The whole distinction lies here only in the form of the faith. Hobbes endows the state with all the sacred qualities of a godhead, to which man is subject for weal or woe. He gives the devotional need of the faithful another object of veneration, condemns heresy in the political field with the same iron and logical intolerance with which the church used to fight every opposition to its mandates. Belief in the state, to the "atheist" Hobbes, was after all just a religion: man's belief in his dependence on a higher power which decides his personal fate and against which no revolt is possible, since it transcends all human aims and ends.

Hobbes lived at the time when the rise of the nationalist state ended the struggle of the church for world power as well as the efforts to bring Europe under the domination of a central universal monarchy. Realising that the course of history cannot be retraced, and that things already belonging to the shadow realm of the past cannot be artificially revivified, he attached himself to this new reality. But since, like all defenders of authority, he started from the inherent bestiality of man and, in spite of his atheism, could not free himself from the misanthropic doctrine of original sin, he had logically to arrive at the same results as his predecessors in the camp of ecclesiastical theology. It profited him little that he had personally freed himself from the fetters of religious faith in miracles; for he enmeshed himself all the more tightly in the net of a political faith in miracleswhich in all its consequences was just as hostile to freedom and enslaved the mind of man just as much. This, by the way, is a proof that atheism, in the current sense, need by no means be associated with libertarian ideas. It has a libertarian influence only when it recognises the inner connections between religion and politics in their utmost profundity, and finds for the possessors of temporal power no greater justification than for the authority of God. The "pagan" Machiavelli and the "atheist" Hobbes are the classical witnesses for this.

All advocates of the power idea, even though, like Machiavelli and Hobbes, they cared nothing for traditional religion, were compelled to assign to the state the part of a terrestrial Providence, surrounded with the same mystical halo that shines about every godhead, and to endow it with all those superhuman qualities without which no power can maintain itself, whether it be of celestial or terrestrial nature. For no power persists by virtue of special characteristics inherent in it; its greatness rests always on borrowed qualities which the faith of man has ascribed to it. Like God, so every temporal power is but "a blank tablet" which gives back only what man has written on it.

The doctrine of the social contract, especially Buchanan's idea that all power emanates from the people, later aroused the Independents in England to a new rebellion, not only against Catholicism, but also against the state religion founded by the Calvinistic Presbyterians, and demanded the complete autonomy of the congregations in all matters of faith. Since the administration of the state church was now acting only as an obedient tool of the princely power, the religious and the political opposition of the ever spreading Puritanism flowed from one and the same source. The wellknown English historian, Macaulay, remarks quite correctly regarding the Puritans that they added hatred of the state to their hatred of the church, so that the two emotions mingled and mutually embittered each other.

Animated by this spirit, the poet of Paradise Lost, John Milton, was the first to step forward in defence of freedom of the press, in order to safeguard the religious and political freedom of conscience of the citizens. In his tract, Defensio pro populo Anglicano, he defended also the unqualified right of the nation to bring a treacherous and faithless tyrant to judgment and to condemn him to death. Like men starving for spiritual food, the best minds of Europe greedily absorbed this book, especially after it had been publicly burned by the hangman at the command of the King of France.

These ideas were most openly advocated among the Levelers, the adherents of John Lilburnes, and found their boldest expression in the scheme of "the people's covenant," presented to the masses by this most radical wing of the revolutionary movement of that time. Almost all of the socialphilosophical thinkers of that period, from Gerard Winstanley to P. C. Plockboy and John Bellers, from R. Hooker and A. Sidney to John Locke, were convinced defenders of the doctrine of the social contract.

While on the continent absolutism almost everywhere won unlimited dominion, in England it achieved under the Stuarts only a temporary success, and was soon unhorsed again by the second revolution of 1688. By the Declaration of Rights, in which all of the principles set forth in Magna Charta, were reaffirmed in extended form, the covenantal relationship between crown and people was reestablished. Owing to this course of historical development, especially in England, the idea of the social contract and the concept of natural rights never lost currency, and had, consequently, a deeper influence on the intellectual attitude of the people than in any other country.

The Continent had become used to surrendering realms and peoples to the unlimited power of princes. The words of Louis XIV, "I am the State," acquired a symbolic significance for the whole epoch of absolutism. In England, however, where the Crown's striving for power was always confronted by the resolute opposition of the citizenswhich could be only temporarily silenced, and never for longthere developed quite a different understanding of social issues. Acquired rights were zealously guarded, and despotism was effectively checked by the requirement of parliamentary approval. John Pym, the brilliant leader of the opposition in the House of Commons against the absolutist claims of the crown, gave eloquent expression to this sentiment when he launched these words against the royalist minority:

That false principle which inspires the princes and makes them believe that the countries over which they rule are their personal property as if the kingdom existed for the sake of the king and not the king for the sake of the kingdomis at the root of all the misery of their subjects, the cause of all the attacks on their rights and liberties. According to the recognised laws of this country not even the crown jewels are the property of the king; they are merely entrusted to him for his adornment and use. And merely entrusted to him are also the cities and fortresses, the treasurerooms and storehouses, the public offices, in order to safeguard the security, the welfare and the profit of the people and the kingdom. He can, therefore, exercise his power only after invoking the advice of both houses of Parliament.

In these words resounds the echo of all English history; they reveal the eternal struggle between might and right which will end only with the conquest of the power principle. For the principle of representative government had then quite a different meaning than now. That which today only helps to block the way for new forms of social life was then an earnest effort to set definite limits to power, a hopeful beginning toward the complete elimination of all schemes for political power from the life of society.

Furthermore, the doctrine of contractual relationship as the basis of all the political institutions in society had very early in England far-reaching consequences. Thus, the theologian, Richard Hooker, in his work, Laws of Ecclesiastical Polity, published in 1593, maintained that it is unworthy of a man to submit blindly, like a beast, to the compulsion of any kind of authority without consulting his own reason. Hooker bases the doctrine of the social contract on the fact that no man is really able to rule over a large number of his fellowmen unless these have given their consent. According to Hooker's idea such consent could only be obtained by mutual agreement; hence, the contract. In his dissertation concerning the nature of government Hooker declares quite frankly that "in the nature of things it is by no means impossible that men could live in social relations without public government." This work later served John Locke as a foundation for his two celebrated treatises on Civil Government, from which the germinating liberalism drew its main nourishment.

Locke likewise based his socialphilosophical theories on natural rights. In contradistinction to Hobbes, he believed, however, that the freedom of the natural man was by no means a state of rude caprice wherein the right of the individual was limited only by the brute force at his disposal. He maintained, rather, that common and binding relationships existed between primitive men, emanating from their social disposition and from considerations of reason. Locke was also of the opinion that in the natural state there existed already a certain form of property. It was true that God had given men all nature for disposal, so that the earth itself belonged to nobody; the harvest, however, which the individual had created by his own labour, did. For this reason there gradually developed certain obligations between men, especially after the separate family groups collected in larger unions. In this manner Locke thought to explain the origin of the state, which in his view existed only as an insurance company on which rested the obligation of guarding the personal security and the property of the citizens.

But if the state has no other task than this, it follows logically that the highest power rests not with the head of the state, but with the people, and finds expression in the elective legislative assemblies. Hence, the holder of the state's power stands not above but, like every other member of society, under the law, and is responsible to the people for his action. If he misuses the power entrusted to him, he can be recalled by the legislative assembly like any other official who acts contrary to his duty.

These arguments of Locke's are directed against Hobbes and, most of all, against Sir Robert Filmer, the author of Patriarcha, one of the most uncompromising defenders of absolute princely power. According to Filmer a king was subject to no human control, nor was he bound in his decisions by the precedents set by his predecessors. The king is chosen by God himself to act as lawgiver for his people, and he only stands above the law. All laws under whose protection men have lived up to now have been delivered to them by God's elect; for it is contrary to reason to assume that a common man can make laws for himself. The idea that a people has the right to judge its king and deprive him of the crown seemed positively criminal to Filmer; for in this case the representatives of the people are accuser and judge in one person, which mocks at every principle of justice. Hence, according to his idea, any limitation of the hereditary power is an evil, and must inevitably lead to the dissolution of all social ties.

Locke, who maintained that the king was only the executive organ of the popular will, logically denied him the right to make laws. What he strove for was a triple partition of public power, as the only protection against such misuse of power as must always endanger the public weal if all the agencies of power were united in one person. Hence the lawmaking power should be entrusted exclusively to the representatives of the people. The executive power, whose agents could at any time be recalled by the legislative assembly and replaced by others, was in all things subject to it and responsible to it. There remained only the federative power which, according to Locke, had the task of representing the nation abroad, of making treaties and deciding concerning war and peace. This branch of public power also was to be responsible to the representatives of the people and concerned solely with putting their decisions into execution.

For Locke the legislative assembly was the specific instrument for safeguarding the rights of the people against the government; hence he assigned to it such a dominant role. If an irresponsible administration violate its trust, it constitutes a breach of the existing legal relationship and then the people are free to oppose the revolution from above by the revolution from below, in order to protect their inalienable rights.

But though Locke strove to find in advance a solution for all possible or reasonably probable cases, there are deficiencies in his political program which cannot be removed by the separation of the power functions, because they are inherent in power itself, and are further enhanced by the economic inequalities in society. These inequalities constitute the weakness of liberalism itself and of all later constitutional schemes by which in various countries the attempt has been made to limit power and protect the rights of the citizens. This was already recognised by the French Girondist, Louvet, who in the midst of the high tide of enthusiasm for the new constitution spoke these weighty words: "Political equality and the constitution have no more dangerous enemy than the increasing inequality of property."

The stronger this inequality became in the course of time, the more unbridgeable became the social contrasts under victorious capitalism, undermining every communal interest, the faster faded the original significance of the measures which once played so important a part in society and in the struggle against the ambition for political power.

For all that, the idea of natural rights had for centuries the strongest influence of all those social cults in Europe which aimed to set limits to hereditary power and to widen the individual's sphere of independence. This influence persisted even after a line of eminent thinkers in England and France, like Lord Shaftesbury, Bernhard de Mandeville, William Temple, Montesquieu, John Bolingbroke, Voltaire, Buffon, David Hume, Mably, Henry Linguet, A. Ferguson, Adam Smith, and many others, inspired by biological and related science, had abandoned the concept of an original social contract and were seeking other explanations for the social and communal life. In doing so, some of them already recognised the state as the political instrument of privileged minorities in society for the rulership of the great masses.

Likewise, the great founders of international law, like Hugo Grote, Samuel Pufendorf, Christian Thomasius (to mention only the best-known among them) whose great merit it is that in a time when the national separation of the peoples was becoming ever wider they made the first attempts to go beyond the limits of the state and to collect what is common to all men into a foundation for a common law these also set out from the idea of natural rights. Grote regarded man as a social being and recognised in the social impulse the basis of all social ties. Social communal life developed definite habits, and these formed the first foundations of natural rights. In his work, Concerning the Law of War and Peace, published in 1625, he traces the formation of the state to a tacit covenant for the protection of rights and for the benefit of all. Since the state arose by the will of all individuals, the right that appertains to each one of its members can never be abrogated by the state. This natural and inalienable right cannot be changed even by God himself. This legal relationship is likewise the basis of all relations with other peoples and cannot be violated without punishment.

Pufendorf, like Thomasius and Grote, has his roots in the English social philosophers and boldly declares that natural rights exist not only for Christians, but also for Jews and Turks, a point of view very extraordinary in those times. Thomasius traces back all rights to the desire of the individual to live as happily and as long as possible. Since man can s find his greatest happiness only in community with others, he should ever strive to make the welfare of all the guiding principle of his actions. For Thomasius this principle exhausts the whole content of natural rights.

All schemes having their roots in natural rights are based on the desire to free man from bondage to social institutions of compulsion in order that he may attain to consciousness of his humanity and no longer bow before any authority which would deprive him of the right to his own thoughts and actions. It is true that most of these schemes still contained a mass of authoritarian elements, and that these frequently grew again into new forms of rulership when they had partly or wholly obtained their ends. But this does not alter the fact that the great popular movements animated by these ideas smoothed the way for the overthrow of power and prepared the field in which the seeds of freedom will some day germinate vigorously.

Thousands of experiences had to be gathered and must still be gathered to make men ready for the thought that it is not the form of power, but power itself, which is the source of all evil, and that it must be abolished to open to man new outlooks for the future. Every slightest achievement along this tedious path was a step forward in the direction of the loosing of all those bonds of political power which have always crippled the free operation of the creative forces of cultural life and hindered their natural development. Only when man shall have overcome the belief in his dependence on a higher power will the chains fall away that up to now have bowed the people beneath the yoke of spiritual and social slavery. Guardianship and authority are the death of all intellectual effort, and for just that reason the greatest hindrance to any close social union, which can arise only from free discussion of matters and can prosper only in a community not hindered in its natural course by external compulsion, belief in a supernatural dogma or economic oppression.

  • 1. The advocates of the idea of natural rights supported them by a long line of historical facts. we recall, for instance, the old coronation formula of the Aragonese: "we, of whom every one of us is as much as thou, and who all of us combined are more than thou, make thee a king. If thou wilt respect our laws and rights, we will obey thee; if not, then not."
  • 2. F. A. Lange, Geschichte des Materialismus und Kritik seiner Bedeutung in der Gegenwart. 1:242 (10 Aufl.).
  • 3. Fritz Mauthner, Der Atheismud und seiner Geschichte im Abendlande. 11:535. Stuttgart und Leipzig, 1921.