Jagiellonian University, Cracow, Poland
BETWEEN
MEDIEVAL AND MODERN TIMES. POLITICAL
AND LEGAL THOUGHT OF
ST. THOMAS AQUINAS AND JOHN LOCKE
We all know that St. Thomas Aquinas was a Christian
theologian and a moral philosopher of the thirteenth century; that
he was perfectly well aware that his Greek master, Aristotle, was
capable of distinguishing morally good and bad actions, that he
was also convinced that without revelation we can have only an imperfect
and inadequate knowledge of the purpose of human life and of man's
supreme good. We know that when he is discussing man's final end
he starts with the Aristotelian conception of 'happiness' and ends
with the Christian doctrine of the beatific vision of God in heaven
and that when he is discussing virtues he completes his treatment
of them by talking about the 'theological virtues' of faith, hope
and charity. But we know also that Aquinas believed in the harmonious
relation between all truths, however attained, and he wished to
exhibit and illustrate this harmony.
First of all Aquinas maintains that in every human
act the will is directed towards an end, towards something apprehended
as or thought to be good, that is, something which is known or thought
to perfect in some way the subject who desires and chooses. And
in accordance with his finalistic conception of nature Aquinas goes
on to argue that the human will is necessarily set towards the final
or ultimate good of man as such, and that it is under the impulse
of this dynamic and innate will's orientation that we make our particular
choices, which are secondary to the main choice very much like all
particular ends are secondary to the ultimate or final end. But
it must be remembered that Aquinas presupposes the existence of
God who created things with innate tendencies towards the development
of their own real potentialities. He presupposes that human nature
has been created by a personal God who would have not created it
with an unavoidable impulse towards a non-existent good or an unobtainable
good and - as a consequence - that all human beings, like all created
things, tend towards the actualisation of the potentialities of
their natures, even though they may never use terms like 'supreme'
or 'final good', but they do so not only instinctively but also
by means of intellect and will, natural intellect which alone is
capable to see the idea of human good. For Aquinas grace does not
annul but perfects human nature: revelation sheds further light,
but it does not cancel the truths attainable by purely philosophic
reflection.
However the differences between Aristotle's and Aquinas'
conceptions of man's ultimate good may be great, it is clear that
both men developed finalistic or teleological theories of ethics,
for both of them human acts derive their moral quality from their
relation to man's final end. According to Aquinas, every human act
has two sides, interior and exterior, 'formal' and 'material'; the
absence of any one of them, especially of the right intention which
belongs to the interior act, is sufficient to prevent ours calling
it good in an unqualified manner. In order that a human act in the
full sense should be morally good it must be compatible both 'formally'
and 'materially' with the attainment of the final end. What is done,
as well as the intention with which the act is performed and the
way in which it is performed, must be compatible with attainment
of the final end and from this relation the act ultimately derives
its moral quality.
In connection with Aquinas' idea of the law we may
say now that the natural reason of all men sees that some acts are
necessary to obtain man's good, for example this natural reason
sees that it is necessary to take reasonable means to preserve one's
life. Law in general, as he says, is a rule or measure of human
acts, conceived by reason and promulgated with a view to the common
good or an ordinance of reason made for the common good by him
who has charge of the community, and promulgated,
in virtue of which one is led to perform certain actions
and restrained from the performance of others by reason as
the first principle of human action, which directs action
to its appropriate end. Authority
of law is from the will if it is regulated by 'reason when it commands';
this does not mean that for Aquinas the law depends on God's or
other lawgiver's arbitrary choice, as later for example for Scotists.
He speaks of God as an artist who has an idea of the work to be
created or done and of the means to its fulfilment. God conceives
eternally all creatures according to their different kinds: He conceives
their ends and the means to the attainment of these ends. And the
divine wisdom, considered as moving all things according to their
several ends in subordination to the end of the whole created universe,
the communication of the divine perfection, is the eternal law.
Hence the eternal law is nothing else than the plan of the divine
wisdom considered as directing all the acts and motions' of creatures to the attainment of
their ends. Man, as a rational and free being, is capable of acting
in ways which are incompatible with this law and it is therefore
essential that he should know the eternal law so far as it concerns
himself. But although man cannot read off the eternal law in God's
mind, he can discern the fundamental tendencies and needs of his
nature, and by reflecting on them he can come to a knowledge of
the natural moral law. Every man possesses the natural inclinations
to the development of his possibilities and the attainment of the
good for man. Every man possesses also the light of reason whereby
he can reflect on these fundamental inclinations of his nature and
promulgate to himself the natural law, which is the totality of
the universal precepts or dictates of right reason concerning the
good which is to be followed and the evil which is to be shunned.
By the light of his own natural reason, therefore, man can arrive
at some knowledge of the natural law. And since this law is a participation
in or reflection of the eternal law and so far as the reflection
concerns human beings and their free acts, man is not left in ignorance
of the eternal law which is the ultimate rule of all conduct.
For Aquinas, therefore, it is the human reason which
is the proximate or immediate promulgator of the natural law. This
law is not without a relation to something above itself; for it
it is, as we have seen, the reflection or participation in the eternal
law. But inasmuch as it is immediately promulgated by the human
reason we can speak of a certain autonomy of the practical reason.
This does not mean that man can alter the natural law which is founded
in his nature. But it means that the human being does not receive
the law simply by imposition from above: he recognises or can recognise
its inherent rationality and binding force, and he promulgates it
to himself. In his conception of natural law as
the expression of the man's dignity and power, Aquinas makes man
alone among created beings as participating intellectually and actively
in the rational order of the universe. Man is called to do so because
of his rational nature. It is the light of natural reason
which enables us to discern good from evil. St. Thomas's
notion of the light of reason is of great importance. Man is conceived
to hold the unique position of being at the same time a subject
of God and His co-operator. But man participates in two worlds.
The order of the precepts of the natural law corresponds to the
order of his natural inclination, includes the qualities which he
has in common with all created beings as well as those which are
distinctive for his own rational nature. He has in common with all
created things the desire for self-preservation. Hence the first
group of the precepts of the natural law comprises all that makes
for the preservation of human life. But man has also in common with
animated beings further inclination to more specific ends. Hence
it is right to say that 'what nature has taught all animals' pertains
to the natural law - such as sexual relationships, the rearing of
offspring and the like. But, finally, there is in man a certain
inclination to know the truth about God and to live in society.
So, all those actions pertain to the natural law to which man
has a natural inclination: and among such it is proper to man to
seek to act according to reason, which gives first principles
of rightness for everybody and is equally known by every
one or the same for all as a norm of right conduct and is
equally well known by everyone.
The order of the precepts of the natural law follows
the order of natural inclinations; and - as a consequence - these
precepts as well as these inclinations or tendencies are directing
man towards his ultimate good, giving him knowledge of which is
necessary for the right ordering of his life and also the conviction
that he should live in society with other men. Aquinas thought of
man as tending naturally and inevitably towards his perfection,
towards the actualisation of his potentialities as man, towards
his final end or good. And he thought of the man's reason as discerning
the necessary acts to the attainment of this end and as ordering
them while forbidding their contraries. In this sense obligation
or norm is imposed by the practical reason, binding the free will
to perform the necessary acts to attain of the final end or man's
good and to abstain from acts which are incompatible with its attainment.
But, at the same time, for Aquinas one may act and
one has iura only on the foundation of the natural law and
in the area which presents its objective norms. In his doctrine
we have no modern natural rights theory although we have the natural
law theory. Something can be said to be according to the ius
naturale in two ways, said Aquinas when he spoke about the man's
natural life. One, if nature inclines us to it: such as not to
harm another human being. The other, if nature does not prescribe
the opposite: so that we can say a man is naked under the ius naturale,
since he received no clothes from nature but invented them himself.
In this way "the common possession of all things, and the equal
liberty of all is said to be according to the ius naturale:
for distinctions between possessions and slavery were not the products
of nature, but were made by human reason for the advantage of human
life'.
In a state of nature men have no rights, because the ius naturale
is neutral in the areas of personal servitude and private property.
In spite of all modern natural rights theory there is no prima
facie rights to men; men do not have a prima facie natural
right to absolute liberty any more than they have a prima facie
natural right to dominate other men.
Aquinas generally used ius and lex,
right and law, as interchangeable terms, pointing that legalism
should follow the grain of reality and that continuity between implanted
right and enacted law should be kept. Whereas the medieval jurists
generally spoke of ius naturale and the theologians of lex
naturalis he was inclined to reverse the usage, preferring lex
in his judicial treatise and jus in his theological treatise
on the cardinal virtue of justice. Lex was not ius precisely,
but in some manner was its rational expression, because ius
signified an objective quality. If legislation
was a part of the practical wisdom of governing the community, one
man could rightfully control another only by showing a reason for
his power: even omnipotence cannot break the order of truth, but
the true and rational legislator ought to have prudentia regnativa,
a species of prudence, the intellectual and moral virtue of
which he act was to command. Legislator's
recta ratio is no so closely linked with ius naturale
in Aquinas' doctrine as some contemporary commentators suppose
and therefore there is no contrast between ius naturale and
lex naturalis.
For St. Thomas lex means much more than positive
statement and very much more indeed than written law; he often speaks
of ius positivum instead of lex positiva, of lex
naturalis instead of ius naturale, and - as Brown has
supposed - he uses ius and lex metonymously in respect
of all of the following kinds of ius-lex: divine, natural,
positive, and human.
He does indeed draw a distinction between these terms, but in both
of them he presents the same rational substance. Valid are only
those iura and leges which are rational but not as
man's rationality but as rationality of God and His order. On the
other hand, only these iura are valid which have legal foundation.
It is a very important thesis because substance of the personal
right is connected not with personal power or dominium but
with rational action which directs man to his ultimate end. We have
already seen, however, that for Aquinas, the Christian theologian,
man has a supernatural final end or supreme good that the attainment
of which transcends his natural power and directs his natural rights
through his natural inclinations as well as through the norms of
the natural law.
The identification of the man's good with 'happiness'
or with self-perfection may easily give the impression that Aquinas'
ideal was purely individualistic and even egoistic in an unpleasant
sense. Yet he has regarded life in society as being prescribed by
the natural law. That is to say, he recognised in the human being
a natural tendency to live in society with his fellows, not only
in a smaller group of the immediate family circle but also in those
larger groups which are called in their developed form states or
political communities. Social life is thus founded on human nature
itself, and both families and states are natural communities. Reason,
reflecting on man's fundamental inclinations, says that these societies
ought to be formed, inasmuch as they are necessary for the development
of man's potentialities. It is natural for man to be a social
and a political animal, living in community; and this is more true
of him than of any other animal, a fact which is shown by his natural
necessities, bodily as well as spiritual
needs. Society is therefore not a purely artificial construction
but a natural institution as a result of man being what he is. And
as founded on human nature it is willed by God who created man.
This does not mean, of course, that the historical divisions into
nations and states are dictated by God but that there should be
a civil or political society or societies willed by God, as is shown
by the fact that He created man who cannot attain his full stature
without society.
Furthermore, every society requires direction and
government. For Aquinas it is a mistake to think, not only with
St Augustine but also with Locke, that government exists simply
in order to keep peace and punish evildoers. According to him, government
would be required even if there were no evildoers and even if no
one was inclined to disturbe the peace. St Augustine was inclined
to say that the state was a result of the man's Fall and as though
political authority existed primarily because fallen human beings
needed to coercive power to restrain their evil tendencies and to
punish crime. Locke said about anti-rational passions which incline
men to break the law of nature. But these were not at all Aquinas'
points of view. Man is by nature a social animal. Hence in the
state of innocence (if there had been no Fall) men would have lived
in society. But a common social life of many individuals could not
exist unless there were someone in control to attend to the common
good. Government, like society, is natural
and willed by God. It exists primarily to care of common good, for
the good life of the community three things are required. First,
that the community should be established in the unity of peace.
Secondly, that the community, united in the bond of peace, should
be directed to good action... Thirdly, that through the ruler's
diligence there should be a sufficient supply of the necessities
for a good life. The government therefore
exists to preserve internal peace and to take care for the defence
of the community, to promote the moral well-being of the citizens,
so far as this can be done by legislation supported by sanctions,
and to ensure citizens a sufficient supply of material necessities.
In Aquinas' doctrine there is no place for a contract which constitutes
society or government.
Since the function of the state as well as the function
of its legislator or legislators is to promote the common good which
has no individualistic substance, the criterion of goodness and
badness in legislation is its relation, discerned by reason, to
common good and not to the interests of individuals or groups.
It does not imply that every precept and prohibition of the natural
law should be embodied in legislation, as will be thought for example
by English Puritans. But the state is not entitled to pass legislation
which runs counter to the natural law in any case. Every human
law has the nature of law in so far as it is derived from the law
of nature. If in any case it is incompatible with the natural law,
it will not be law, but a perversion of law. And,
therefore, Aquinas may say also that the will of the prince has
the power of law only when is rational and directed towards
the well-being of the whole community as a perfect whole, while in any other sense the will
of the prince becomes an evil rather than law.
From this view of the relation of human positive
law to the natural law it naturally follows that just laws are binding,
while unjust laws are not binding in conscience. A law is unjust,
says Aquinas, if it imposes burdens on the citizens, not for the
common good, but to satisfy the cupidity or the ambition of the
legislator; if in enacting the law the legislator goes beyond the
powers committed to him; or if burdens are imposed in an unfair
and disproportionate manner. Laws of this kind are acts of violence
rather than laws... they do not bind in conscience unless observance
of them is required in order to avoid scandal or public disturbance.
Laws can also be unjust by contravening the divine positive law,
namely the precepts of the Decalogue, and laws of this sort ought
not to be obeyed. The sovereignty of the ruler or legislator
does not cancel the notion of legal obligation. Positive law does
not exhaust the whole range of legal experience. There may be laws
other than the commands of the sovereign, laws with a different
structure yet nevertheless binding and formally perfect. The natural
law and the laws of the international community (ius gentium)
are devoid of sanctions but both are properly called laws and are
binding even on the sovereign. Like Albericus Gentilis, one of the
founders of modern international law, Aquinas may say that the 'absolute'
prince is a prince who is above positive law but under
natural law and under the law of nations.
Between Aquinas and Locke we may see not only Richard
Hooker's Thomistic in essence doctrine, which for English thinker
will be crucial, but also a quite opposite political and legal direction
among Christian philosophers of the later Middle Ages. The famous
members of the Franciscan order, not Dominican as Aquinas, Duns
Scotus and William of Ockham, connected the law of nature or
God with legal rights. For Scotus ius naturale was not
simply neutral with regard to dominium, as was in Aquinas,
but it positively ruled it out, since common use was the optimum
strategy for men in a state of innocence. For him, common use was
the common dominium. It was not the case that the human race
collectively had the kind of right over the world, rather that each
human being was simply able to take what he needed, and had no right
to exclude other one from what was necessary for him.
Scotus took dominium to be necessarily private,
something which not only could be exchanged, but which could also
be defended against the claims of the needy, and quite possible
by violence. Man could have property, which was not purely a feature
of a social life. In Ockham's case, one may see identification
of the right of use and the right of ownership and, as a consequence, identification
individual or subjective powers with rights, rights of God or humankind
as well as rights of individual person. In this conception there
is no impersonal common good and public norms as may seem to have
objective validity. There are public norms which are conventional
constructions of these various subjects and which regulate only
external relations between citizens. Hence political thought and
action is totally concerned with the conflict, balancing and delegating
various but always subjective powers-rights.
Scotists' nominalism meant a crisis in Scholastic
method, a quarrel about "universals" and an anticipation of the
modern theory of rights-powers. The vindication of the will's primacy
over the intellect led to the denial that ethical values can have
any other foundation but the will of God that imposes them. The
notion of God as an unlimited and arbitrary power implied the reduction
of all moral laws to inscrutable manifestations of divine omnipotence.
The basis of the "natural system of ethics" was discarded. Natural
law ceases to be a bridge between God and man. It affords no indication
of the existence of an eternal and immutable order. It no longer
constitutes the measure of man's dignity and of his capacity for
participation in that order, a standard of good and evil available
to all rational creatures, because for nominalists an action was
not good thanks to its suitability to the essential nature of man
but thanks to God's arbitral will. Validity of the norms was founded
not on the standards of God's reason as well as man's reason but
only on God's absolute will. Law was not reason but will, pure will
without any foundation in reality, without foundation in the essential
nature of things.
It is as if the notion of sovereignty was applied
here to the divine law-giver himself. The notion of sovereignty
of God as legibus solutus became the pivot of Calvin's ethics
and theology and later the foundation of the modern conception of
sovereignty as well as the new conception of natural law which was
the product of the Age of Reason. But this influence was enough
paradoxical because the revival of natural law which took place
on the turn of sixteenth and seventeenth century was essentially
a rejection of the nominalist or voluntarist theory of law. Thus
Grotius' famous proposition, that natural law would retain its validity
even if God did not exist, which appears as a turning point in the
history of Western thought, it was the answer to the challenge not
of rational-realistic ethics of Aquinas, but of voluntarist and
nominalistic one. It meant the assertion that command is not the
essence of law and that natural law is independent of the God's
will. This meaning goes in the same direction as a convenient summary
of Catholic conception which was given at the beginning of the seventeenth
century by Spanish Jesuit Francisco Suárez, who had also taken the
view that natural law does not depend on the will "of any superior",
especially the will of absolute monarch as wanted to apologise the
creators of the doctrine of "divine rights of kings".
The modern theory of natural law is not, properly
speaking, a theory of law at all. It is a theory of rights. A momentous
change has taken place under the cover of the same verbal expressions.
The ius naturale of the modern political philosopher is no
longer the lex naturalis of the medieval moralist nor the
ius naturale of the Roman lawyer. These different conceptions
have in common only the name. This significant fact pointed out
Hobbes: though they speak of this subject use to confound ius
and lex, right and law: yet they ought to be distinguished; because
right consisteth in liberty to do, or to forbear: whereas law determineth,
and bindeth to one of them: so that law and right differ as much,
as obligation and liberty. From
this distinction he had argued that civil war is caused by each
individual claiming the right to judge the law in accordance with
their subjective standard of conscience or 'private judgement'.
The different meanings of the word ius were
for a long time familiar to the lawyers who had been brought up
in the study of the Roman law. They had carefully distinguished
between "objective" and "subjective right", between the norma
agendi (the rule of action) and the facultas agendi (the
right to act) which can both be indicated by the same name of ius.
But they had never overlooked the fact, which Hobbes seems either
to ignore or to implicitly deny, that the two meanings of ius
are not antithetical, but correlative. In the language of the
law-schools and as we have seen of St Thomas, ius could be
used in an "objective" as well as in a "subjective" sense: but the
latter always presupposes the former. There is a facultas agendi
inasmuch as there is a norma agendi. There is a "right"
inasmuch as there is a law.
But for the great majority of modern natural law
writers Hobbes' anarchical conception of natural right as
opposed to natural law was crucial. Even
Locke in the Two Treatises argued that in a system of popular
sovereignty members would withdraw their consent and revolt whenever
a law conflicted with their private interest, claiming that it contravened
the public good. Although he said that the freedom of an Englishman
consists in his liberty to dispose of his actions and possessions
according to the laws of England, his emphasis was shifting more
and more from the objective to the subjective meaning of ius.
For him individual human freedom was connected not with the ultimate
end or good of man, nor with the norms of the natural law which
are obligated for all men, but with the right of individual who
has the power quite similar to that which nominalists and voluntarists
had given to God alone. In his doctrine individuals, very like to
Byzantine prince, were the living embodiments of the law (lex
animata) and their will and law became correlative notions.
In his natural right theories one may see once again the old idea
of Roman and glossators texts of a supreme and ultimate human power
from which all laws proceed. Idea which undermines all possibility
of serious natural law thinking, because natural law is not properly
law if sovereignty is the essential condition of legal experience,
because it is not possible to conceive a law of nature if command
is the essence of law.
If a rule may be laid down as a command we cannot
distinguish in law with Aquinas the 'compelling' and the 'directing'
aspects of law (vis coactiva - vis directiva). Hence,
while for Aquinas the 'directing' aspect of law was crucial, because
it was the element of justice, for Locke both aspects are identified.
He said not only that political power is a right of making
laws,
but also that the state of nature, the pre-political state,
has a law of nature to govern it, which obliges every one, supposing
the law of nature as a set of norm or norms, has no political character
if only political power is a right of making this norm or
these norms. Locke said at the same time that reason, which is
that law (of nature), reaches all mankind who will but consult it,
that, being all equal and independent, no one ought to harm another
in his life, health, liberty, or possessions.
In this context we must ask a question about
the primary rights as a capacity of the individual who realises
his personal ability or power over law as a set of norms which rules
individuals' actions. And a second question: what is substantial
relationships between norm of the law of nature and such individual
ability or power? Locke writes, on the one hand, that all men
may be restrained from invading others' rights, and from doing hurt
to one another,
because rights of every man create a property in his own person. And, on the other hand, that the
law of nature willeth the peace and preservation of all mankind. In these words he creates a
very important doctrine for all liberal tradition and modern natural
law thinkers on the priority rights before law. Now, law as the
set of norms, is identified with human reason, has no objective
context and is only a guarantee of the individual rights and as
such it does not determinate the individual ability or power; it
occupies a second position whilst the first is taken up by personal
rights or property.
Locke calls property or dominium this right
of every man in the state of nature to dispose of himself and his
possessions as he thinks fit; for him every man has a property in
his own person; by which he means that a man has a natural right,
limited only by God's purposes and by the obligation to respect
the same right of others, to do as one pleases. He may not destroy
himself, because he is God's creature. His property in himself is
not independent of God's will but is not connected with God's reason
as in Aquinas' doctrine. There is no eternal law which norms are
supplanted to all created being in a form of natural inclinations,
with which all rational natural law norms are compatible. Rather
there is only one inclination, which directs individual not to his
supernatural and ultimate end but reduces him to the natural or
material reality and is a foundation of his rights but not law.
As a consequence, God alone guarantees not the essence of law as
a set of norms, but essence of rights as a personal ability/power.
The state of nature is not a state of war not because every individual
has a natural inclination to live in a political community, if this
state is quite different from the state of civil society. It is
not a state of war, because reason governs in it, pure reason, free
from every passion and every pre-rational, even biological, inclination,
which knows natural rights of every individual. The substance of
it is very simple, since reason or the law of nature knows only
one norm: you may not invade others' rights; if there are
no rights the law of reason will be quite empty.
But here Locke has an important problem: in the state
of nature men had the law of nature to guide them, but they, from
time to time, must have differed about the law or about its application
to particular cases. They must therefore have felt a need for an
established, settled known law, received and allowed by common consent
to be the standard of right and wrong, and also for a known
and indifferent judge, with authority to determinate all differences
according to the established law, and lastly for a power
to back and support the sentence when right, and to give it due
execution. By putting themselves under government,
men do not give up all their rights, but only those which
must be surrendered for the common good, which is only the preservation
of freedom or property or a set of personal, passive rights. They
give up only two active rights or powers: to interpret the norm
of the law of nature and to punish. Government, which is like society
not a natural institution, has no absolute authority, but only as
much as it needs for the common good which is defined now as a sum
of individual interests and in no sense as a good of a whole community.
The law of nature, this only one norm, stands - says Locke
- an eternal rule to all men, legislators as well as others.
The Two Treatises is the most radical answer
that has been given yet to the main moral-jurisprudential question
for the seventieth century of who has and who has not the 'right'
to political power. For Locke each individual does have and should
have the political power in the juridical form of personal rights.
Therefore, first, prior to and independent of the establishment
of institutionalised forms of government people are able to govern
themselves; and, second, the power of institutionalised forms of
government is derived from the original powers of the individual
members of the political society. But, third, and the most important,
which in some sense connects Locke with Aquinas but makes him quite
different from the majority of modern natural freedom theorists,
individuals have not only the right to defend themselves and their
possessions from attack, even to kill the attacker if necessary,
not only this right of defence, but also political power, having
it individually and not as a corporate body. By arguing in the Two
Tracts that the state of nature has a natural law enforced by
the passive system Locke showed that natural freedom is not Hobbesian
'absent of restraint' (or 'negative liberty') but - like in Aquinas
doctrine - the juridical form of freedom as action within the bounds
of and subject to law. It follows from the constitutive role
of natural law or reason that individuals who transgress it, in
civil or natural society, by using 'Force without Right'
or manifesting a 'declared design' to do so, place themselves outside
moral human society, and thereby in a 'state of war'.
Locke's innovation here - one may say - is to argue that the fundamental
natural law is not self-preservation but the 'preservation of
mankind', but we must remember about the foundations of his
natural law which are quite different from Aquinas as a consequence
his individualistic and no communitarian premises as well as his
appeal to natural rights and no to natural inclinations on which
are grounded norms of the natural law and only secondary to this
law. If we do not remember about Locke's individualistic premises
we may not understand his radical breaking with the Aristotelian-Thomistic
tradition and make such error as Tully who has written that natural
property rights are (in Locke's doctrine) use-rights within a larger
framework of rights and duties to preserve the community (mankind)
and regulated by everyone through the accusatory system. We are not able to see that for the
classic of early liberalism reason, which is the natural
law, teaches all mankind who will but consult it, that... no
one ought to harm another in his life, health, liberty, or possessions,
namely in his personal and subjective rights, but only if his own
self-preservation is secured. We are also not able to see the anti-naturalistic
consequences of Locke's contractual conceptions of society and state
as well as his identifications of right or ius with power
or dominium, "objective" and "subjective right" and the norma
agendi and the facultas agendi, which are crucial for
the modern political philosophy, especially liberal one.