Not all 'states of nature' are created equal
This article includes some material adapted from a guest lecture on William Blackstone delivered at Davenant Hall earlier this year.
In De Regno, Thomas Aquinas begins his advice to the King of Cyprus by outlining the need and basis for society and civil rule. All creatures are ordered toward an end. Man, as an intelligent being, is led to that end in a way distinct from purely instinctual animals. But because men are intelligent moral agents, there is no guarantee that their “methods in proceeding towards their proposed end” will cohere. Rather it is likely that given a multiplicity of immediate pursuits and actions conflict will arise.
Indeed, men have the light of reason implanted in them by nature to guide them to their proper end. If man was isolated, he “would require no other guide to his end.” He would “be a king unto himself, under God,” governed only by God’s law and revelation. The rub, however, is that man is created to be social and, therefore, political. “[T]o live in a group” is a “necessity of man’s nature.” Dependence (vertical and horizontal) is written into his existence.
Man needs others first and foremost to help procure the necessities of life, which one cannot do on his own. “It is therefore natural that man should live in the society of many.” Mutual assistance is taken by Aquinas to refer to necessities as mundane as harvesting crops and hunting game to higher, intellectually based endeavors like medicine. But notice that he is focusing on the material necessities first; self-preservation is basic.
He does not stop there. Humans are distinguished by their possession of speech and a concomitant need to communicate. He quotes Solomon: “It is better that there be two than one; for they have the advantage of their company.” Physical self-preservation is not all there is to man’s sociability; he needs companionship.
To acquire these social necessities government is required:
“For where there are many men together and each one is looking after his own interest, the multitude would be broken up and scattered unless there were also an agency to take care of what appertains to the commonweal… there must exist something which impels towards the common good of the many, over and above that which impels towards the particular good of each individual.”
Man is naturally driven to society because 1) God has created him to need the assistance of others in order to survive; and 2) God has made him a reasonable creature capable of speech which implies and requires someone else to speak to, we might say. The need for companionship is baked into the equation. In turn, government is required to shift the energy of each individual to a preservation of the whole because without the existence of the whole the existence of the individual would cease. If man is made for society, then he must orient himself toward its preservation.
This is not far off from what the 1777 Vermont Constitution says: “all government ought to be instituted and supported, for the security and protection of the community.” (We will come back to, and complete, that opening line later.)
Thomas did not yet have the term, but he is engaged in what can be fairly called a state of nature inquiry. He is considering the theoretical basis of society and government with a thought experiment wherein man is alone. Of course, De Regno never suggests that such an isolated state ever existed. It’s purely hypothetical but useful in establishing the non-negotiables of human life and the purpose for politics and government, all of which is God-ordained and unavoidable because the sequence of necessities naturally sought by all men is baked into the system. Isolating and identifying the causality at each stage in man’s hypothetical progression toward society and government does not negate the naturalness of the result.
This preliminary exercise in De Regno was conducted repeatedly throughout the subsequent centuries but arguably reached its zenith in the eighteenth-century, the shorthand of which by then was the “state of nature.” Hobbes, Locke, and Rousseau are well-known for their versions of the hypothetical—or not so hypothetical, as the case may be—inquiry. And that’s the point: the state of nature idea has fallen on hard times, identified now solely with Enlightenment political theory and, therefore, antithetical to the classical counterpart. As a result, namechecking the state of nature itself is often considered a per se indicator of an Enlightenment liberal text.
The question then is, given the ubiquity of the state of nature type of thought experiment in the history of western political thought, are all references thereto created equal. Are Hobbes, Locke, and Rousseau to be granted a monopoly on the idea such that any reference thereto is unredeemable, and always and everywhere a signal of liberal thought? Many, like Patrick Deneen and D.C. Schindler and C. Bradley Thompson, seem to think so. (Deneen and Schindler lament this and Thompson celebrates it; notably, Schindler and Thompson both envision the Declaration of Independence as definitive for the resultant American nation, and both overstate the case in their own way.) I’m not so sure. It seems to me that the exercise as presented in De Regno was repeated in a faithful way by illiberals even as liberals diverged in thought and deed.
(As a preliminary note, it seems to me that much of the state of nature literature is akin to discussions on the logical order of God’s decrees, which is fruitful but always understood as not constituting a real secession of choices or declarations in God himself. It is only if that caveat is dropped that the inquiry can become dangerous for theology proper.)
In Why Liberalism Failed, Deneen tends to lump all uses of the phrase into what I would call the substantive and proscriptive view of the state of nature—distinct from the more hypothetical, practical usage. In some authors, the latter usage is meant to simply contemplate the nature of government authority and doesn’t discard natural, preexistent societal relations in so doing.
The former, on the other hand, presents the state of nature as a more or less historical moment which has something to tell us about man’s optimal situation vis a vis external authority and obligation of any kind—in that situation less is more; whereas in the practical use, the chief concern is to determine the source and sustenance, so to speak, of properly constituted government. For instance, Thompson, in America’s Revolutionary Mind, concludes (quite wrongly in my view) that “The idea of a state of nature was not a fiction or a hypothetical construct for American revolutionaries. It described their social reality.” Perhaps, the operative word there is the “revolutionaries,” but Thompson connects this version of the state of nature to frontier life, adopting the over aggerated and prevalent view of provincial life in early America. With this reference, Thompson implies Rousseau’s wilderness freedom (he cites the Discourse on the Origin and Foundations of Inequality among Men in the paragraph prior). Radical autonomy (and unalloyed choice) is in view, as is the substantive, proscriptive view wherein the state of nature becomes a weapon unto rights protections and consent-based government—nothing preexistent or inevitably natural. (At the end of the day, Thompson’s narrative is the tired Lockean one which Forrest McDonald and others cast doubt on years ago; contra liberals, it is an open question as to how much influence Locke actually enjoyed posthumously on late eighteenth-century America; it is also unsettled, in my view, that Locke has been read sufficiently in his own context and against his own background, but I digress.)
So, one view of the state of nature is political in the narrow sense and the other political in the broadest possible sense. A slight but important distinction. (Blackstone’s own view seems to oscillate between both views at will and without warning.)
Deneen refers to the idea as a “prehistoric fantasy” of the “autonomous self,” an atomized existence that, ironically, can only actually be produced by highly developed state and market forces. Now Deneen is getting at something true about the function of the state of nature idea. If it is employed as an imagined exemplar of human existence, then all societal forces are necessarily—and in that since justifiably—marshalled to reenact or recover that pure and primordial existence. And if society, at its inception, was a creation of mere choice then it can be manipulated or even uncreated by the same mechanism and power. The legitimacy of society, and, indeed, government, is predicated purely on consent of the individual—or an amalgamation of individuals.
State power—even society itself within the social contractarian scheme—is then simply a necessary but lamentable function of the need to protect that original, constitutive mechanism of choice, or enjoyment of rights. It might be recognized that protection of rights, in turn, requires a limitation on those same rights, but this vision of rights maintains that said limitation is, at first, an alteration of the pure article, and, therefore, the limitations must be as limited as possible. The telos of society and its expression of power is decidedly oriented toward the individual.
The emphasis will be on maximizing choice as much as possible without losing it—the elusive libertarian equilibrium. Inevitable human conflict is understood in terms of contrary choices; mediation is tasked with the impossible: preserving the autonomy and will of all parties. In truth, as we’ve seen all too clearly, the moral trajectory of this arrangement is one directional.
In any case, Deneen rightly recognizes that, at least at certain points, John Locke (and then Rousseau) adopted a less brutish but crueler version of Hobbes’ idea to the detriment of previously recognized, natural human connections and concomitant obligations. Within that paradigm—the predominant one today—the state of nature entails or assumes non-relational beings who become relational as a matter of sheer convenience. Passive freedom (the freedom from) is the starting point. Thus, Locke, in the Second Treatise, discusses the societal inheritance of children in terms of choice, not obligation. The true honor of father and mother is to choose for oneself whether he will perpetuate their place in society and the commonwealth. If the inheritance is not consummated by the chosen embrace of the inheritor, then it is, in this sense, counterfeit.
Insofar as it goes, Deneen is correct about what a particular idea of the state of nature entails. But he, perhaps, makes too much of the concept, using it as a catch-all for permissive licentiousness.
Historically, the meaning of ‘state of nature’ is difficult to pin down. Each author who employs it must be understood according to their own usage. The greatest English jurist of all time, Matthew Hale, for instance, confronted the Hobbesian view early on, countering with a “state of peace” theory rooted in the Garden of Eden and prelapsarian man’s original enjoyment of perfect tranquility between God and man, and man and man—never again to be recovered this side of glory.
The variety of uses cuts against Deneen’s lumping (though his general point is well taken; my only point is that “state of nature” cannot function as a signal of liberalism but rather its use must be assessed on a case-by-case basis.)
Some commentators even in the late eighteenth-century employed “state of nature” simply to refer to “where no civil government is yet erected,” as Dan Foster put it in his Short Essay on Civil Government (1774). Hence, some early state constitutions referred to themselves as being in a state of nature which did not indicate they had dissolved all social and religious ties or abandoned their colonial history. Others, as Thompson points out, intended an Edenic, pre-Fall existence when referring to the state of nature which had only existed at the beginning of creation, as Hale had.
What does seem to lapse as the eighteenth-century progressed is the natural sociability basis for society and government. The necessity of conflict avoidance dominated. And, true enough, where the latter cause predominated, consent became definitive, and rights protection became the raison d’etre of government. That is true, but it does not mean that all who invoked the idea were descending into radically autonomous, atomized liberalism of the brand represented by Rousseau wherein man is born pristine and perfectly free prior to entering society which offers only chains to him in exchange for protection.
Indeed, there was significant pushback offered in the early republic against both Hobbes and Rousseau on this front.
Nathaniel Chipman and Zephaniah Swift were both prominent legal commentators in the early republic and both critiqued the state of nature idea. Chipman’s 1833 Principles of Government argued that the problem with any version of the state of nature theory is that it considers both society and government as antagonistic to man’s nature. Rather, society and government both are naturally suited to man’s nature by divine design. Man’s natural existence is amongst both of them. Likewise, Swift’s System of Laws (1795) declared that a state of nature never actually existed, nor could it.
Stepping back and out of America, Vattel, who’s Law of Nations was a favorite citation of early American jurists, made a similar point, viz., that man’s natural, temporal end (i.e., happiness) cannot be located outside of society because he is a sociable creature. It is nature itself that founds society. Contrasting the natural and social state was, therefore, ludicrous.
But, perhaps, the best example of state of nature backlash in America can be found in James Wilson’s lectures, if you will indulge a lengthy quote (Lectures on Law, Chapter VII, “Of Man, as a Member of Society”):
“It is not fit that man should be alone, said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments…
Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion.
Their conclusion is that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species…
But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience.”
Thompson himself cites an interesting, clarifying example, which he takes as ultimately not definitive. In 1778, the author of the A public defence of the right of the New-Hampshire Grants (so called) on both sides Connecticut-River, to associate together, and form themselves into an independent state asked whether New Hampshire had found themselves in a state of nature. Intended is only the question of pre-governmental authority for no one was wanting to enact a societal tabula rasa and conjure something sui generis out of thin air. Even still, the anonymous New Hampshire man answered in the negative. The people had not reverted to a state of nature but rather to their “their first legal stage, viz., their town incorporations.”
In other cases where the idea is invoked by the likes of Patrick Henry or James Warren or Samuel Williams, it is clearly in the mood of lament. The egregious actions of the home government, or in the case of Williams, the New York government, had forced them into political flux. It was, therefore, not prescriptive but merely descriptive. Indeed, John Adams regarded the breakdown of government and the concomitant induction of the colony into a state of nature as tantamount to horrific civil war. The state of nature was not aspirational for him. Many more founding era examples could be mustered, it’s just that Thompson does not find them dispositive for his narrative which is determined to be Lockean at the outset.
Looking to Blackstone who seemingly everyone agrees influenced the jurisprudence of the late eighteenth century (at least when it suits them), we find in his Commentaries this treatment of the state of nature: “If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature, and the law of God.”
Immediately thereafter, however, Blackstone qualifies: “But man was formed for society; and, as is demonstrated by the writers on this subject [citing Samuel Pufendorf], is neither capable of living alone, nor indeed has the courage to do it.”
he rejects the state of nature idea as having any real basis in reality, any use outside of preliminary hypotheticals.
“Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society.”
Importantly, Blackstone reveals here that the most basic unit of society is the family. Hence, in volume two of the Commentaries, treating the parent-child relationship, Blackstone calls it the “most universal relation in nature,” and immediately derived from spousal union. Further, he doesn’t think the state of nature ever existed, nor can it. Larger societies developed naturally from even more basic familial relations.
Briefly returning to Deneen, these historical counter examples notwithstanding, he is right, of course, that what one thinks about the state of nature directly impacts what he thinks about rights and law. That’s why Chipman and others bothered to address the idea at all.
If man is fundamentally and inescapably social then his individual rights are, from his first breath, conditioned by his nature, his sociability. The law of his creation may preserve certain privileges and immunities for him, but if that same law urges and even requires a social existence then the rights preserved must be understood and exercised within the social condition. There is no point in considering other possibilities for they illuminate nothing about the nature of rights or the man who possesses and exercises them.
On the other hand, if man is born isolated and autonomous, then his individual rights receive no such condition until he elects—even if the election is coerced—to introduce such limiting conditions. At bottom, the entire inquiry is not really about the nature of man as such, but rather how the nature of man informs the nature of society.
Accordingly, we find in Blackstone, despite earlier laudatory remarks about the absolute rights of persons, a fairly traditional balance of rights and duties and acknowledgement of inherent rights of society qua society, viz., the ability to limit the exercise of rights for the common good.
Blackstone says that human (municipal) law considers two kinds of rights: civil duties or relative rights and absolute rights. The latter belong to particular people and the former are “incident to them as members of society.” Absolute rights belong to men in a state of nature, and are enjoyed by men both within and without society. (There’s that phrase again.) But absolute rights are also accompanied by absolute duties which also must be performed no matter what. They regulate his behavior everywhere.
It is not the “business of human laws to correct them.” What Blackstone means is that it is only when virtues and vices become public and affect human relations that human law step in. Public sobriety is a relative duty whilst private sobriety is an absolute duty. But again, the principal aim of society is to protect enjoyment of absolute rights, and the relative rights are oriented to that end.
Absolute rights are admittedly few: personal security, freedom of movement (i.e., freedom from unlawful restraint), and property. Relative rights become more extensive as society grows and the myriad of human interactions present new conflicts or rights. Blackstone also recognizes reciprocal rights and duties, especially inside of the parent-child relationship. Parents acquire an affirmative duty to the children they produce by act of reproduction. Their right to discipline their children maintains only so long as they are not abusive—that is, so long as they discipline them for their good. In turn, however, by no affirmative, voluntary act of their own, children owe a duty of care to their parents as they age. The relationship comes full circle.
Deneen’s critique of the state of nature heuristic is valid insofar as he is homing in on one particular expression of it. But his case is not exhaustive. The meaning and use of the term was apparently fluid in the period under review such that use of the phrase does not tell us much about the user absent more thorough investigation. More normatively, we see from Aquinas onward a legitimate employment of the idea. When intended as a non-prescriptive, non-substantive inquiry into the motives and causes of human society, and where the natural, sociability of man is appreciated, the state of nature hypothetical is useful and basic. When applied in Rousseau’s mood, where man’s best days are behind him in a fanciful wilderness state, the inquiry yields exactly what Deneen says it does: a disposition toward radical autonomy and a hatred for the ties that bind.