C O N T E N T S

Our theme is to analyze the doctrines of Hobbes, Locke and Rousseau, three great humanists who succeeded in perpetuating their teachings on the evolution of political institutions through natural law and political law as the roots of the current State. All of them are liberal thinkers, but not all of them are democrats, at times favoring the omnipotence of political power, establishing suffocating limits to the individual, as will be seen.

II - REFERENCES

1  - Distinctions Between Natural and Political Law

Natural law is the set of rules of conduct inherent in human nature, independent of convention or a human source of emanation. These rules are immutable and serve the needs to preserve existence when man has yet to lose his unlimited liberty, a characteristic of his natural state. These rules can be informative, determinant or conditioned by the laws established by the Lawful State.

There is no consensus among scholars about which, specifically, these rights would be, fruits of rational speculation as they are: either taken from observation and experience or elaborated at the level of mental exercise. Since in reality there is a certain obscurity about the circumstances of man’s natural state of being, explained by philosophical theories, based on religion or not. Note that the social conditions prevailing in a certain era, over the course of history, influence contemporary doctrines regarding the diverse claims of society. These rights are absolute values, mutable only for the preservation of the right to enjoy the fruits of life in safety and peace.

Political law is the set of legal rules established by the social compact, which regulates the rights and duties of the State in relation to the citizen to defend society organized as such, particularly concerning liberty and the formation of government, sovereignty and nationhood, besides the relations with other States. It is mutable and establishes consensual standards of behavior.

2 – The Renaissance

The social context in which the three philosophers lived was exactly the period at the end of the Middle Ages and the start of the Modern Age, during the rebirth of Greco-Roman culture in all aspects of erudite, literary, artistic and scientific development. It was a period of lights, when the horizons of human knowledge expanded beyond their former frontiers, not only in terms of the great voyages discovering new continents, but also in the very human contingence. Communications also were key, with the advent of the printing press providing the means to transmit new discoveries and new doctrines to all places. There was a valorization of the human being, and with this the medieval idea that some are born to rule and others to be ruled could no longer endure.

With the taking of Constantinople (capital of the Eastern Roman, or Byzantine, Empire) by the Turks in 1453, and the great discoveries starting in 1492, this period of lights began, in which, especially in philosophy, resplendently shined the three thinkers, who influenced the culminating moment of the Enlightenment – the French Revolution of 1789 – which closed under the primacy of the ideas of liberty, equality and fraternity, raised to principles of State and of the new society that emerged.

While in France, home ground of the immortal Rousseau, the popular will was imposed by force, events occurred in the England of Hobbes and Locke that also permitted the introduction of the humanist thinking systematized by them.

England, which had been the cradle of the drive to limit monarchical power in the Middle Ages with the Magna Carta (1215), presented the Bill of Rights (1627-1628), from which later (1679) grew the legal innovation of the Habeas Corpus, one of the greatest guarantors of political rights of the seventeenth century. But the dawn of the great social reforms had not yet been assimilated: freedom of the press was repressed and cruel and unusual punishments were imposed arbitrarily, thus deviating from the essential purpose of the State, which is to guarantee the welfare of its citizens, who have renounced their rights only in limited form to submit to the protection of their government. But the thinking of royalty was different than that of the people, who were beginning to assimilate the new doctrines and inculcate them into their beings, awaiting a propitious moment to show the light of their force. An important development occurred in Locke’s early infancy. It was built on the popular unrest caused by the unjust martyrdom of pamphleteer William Prynne (1637). At the moment when the executioner carried out the sentence, a resounding cry of terror arose whose repercussion provoked the fall of Charles I – an expression not just of disaffection, but the choler and repudiation of absolute and arbitrary power personified in that monarch (1).

It was because of the popular revolt against absolutism that Hobbes, in 1640, due to his doctrine propitious to the flourishing of absolute power after the social compact, had to take refuge in France, to escape a possible attack on his person by his countrymen.

These in general lines are the circumstances found by the thinkers under analysis here, in their formation. Experience molded their characters and permitted these polyvalent geniuses to externalize the collective unconscious and channel it to their extraordinary solutions toward the progress of individual rights and guarantees within the State.

3 – Biographical Notes on Hobbes, Locke and Rousseau

Thomas Hobbes de Malmesbury was born in 1588 in England, son of a protestant preacher, and died in 1679.

He studied at Oxford, and in early adulthood traveled through Italy and France, working as a tutor. On returning to England he tried, in the manner of Descartes, to form a deductive conception of Nature and Society, fixing the word as the principal element of human development, more than the printing press, allowing man to arrive at his social state, having force as the singular source of law. He was an adversary of democratic ideas, which caused his unpopularity, accused of being a defender of the Stuarts, the absolutists who held power.

John Locke was born in England in 1632 and died in 1706 (some authors say 1704). He knew Descartes and Hobbes, both of whom influenced his thinking.

Professor of Greek, Rhetoric and Philosophy at Oxford, he also studied Medicine, Chemistry and Political Economy. Politically active, he was persecuted by the absolutist monarchy, accused of liberal radicalism, and forced to take temporary refuge n France (1684).

He was the favorite author of the eighteenth century, known as the “father” of British empire building, and stood out as a philosopher and severe critic of the seventeenth century philosophers, particularly the doctrine of innate ideas.

Reason, to him, is at the center of the legitimacy of the acts of man in the natural state, and it is Reason that establishes the law, whose application is by all men. The human being is understood as a social creature (political man), a vocation that is already established from Creation, the reason God at the same time gave him the capacity to form articulated sounds – since man’s destiny is association. The word, developed later, is the bond among the components of societies. To him, knowledge comes from experience, there being no innate principles in the mind, which is instead able to acquire knowledge through its natural faculties.

Jean Jacques Rousseau was born in Geneva in 1712 and died in Paris in 1778.

A philosopher and writer, he studied Music, Sciences and Philosophy. Among his many accomplishments, he was the inventor of the system of musical notation we use today.

His philosophical fundament is demonstrated in his Discourse on Inequality, The Social Contract, and Emile, principally the right that individuals must be protected by Society, which must guarantee them liberty, even in education (the pedagogue Emile establishes a new method of teaching in which the conditions are created for the student, spontaneously, to decide to learn). The latter work, for having been published over government prohibition, led to an arrest decree against him and caused him to flee to Switzerland, and later to England.

III – NATURAL LAW AND POLITICAL LAW IN HOBBES, LOCKE AND ROUSSEAU

1 –Hobbes

The State, according to his philosophical doctrine, is an artificial animal, created by the artifice of man, a natural animal, who imitates Nature, and thus follows Nature. Denominating it is Leviathan, its characteristics are projections of the human being, with greater stature and force than man to attain its destiny, which is to protect and defend man.

The book LEVIATHAN is divided into four parts:  I – Of Man; II – Of Commonwealth; III – Of a Christian Commonwealth; IV – Of the Kingdom of Darkness, where he gives his thoughts and points out the principles of his doctrine on natural law.

The word, or language, has an essential value, since it is through language that man expresses, and later records, his thoughts. Without language there could be no State, or Society, or Social Contract. He does not consider, however, that it is inherent to human nature, unlike reasoning.

               “The general use of speech is to transfer our mental discourse into verbal, or the train of our thoughts into a train of words…”

 (Leviathan)

Equality among men is pointed to by Hobbes as existing in the human being’s natural state, consisting of the existence, in all, of a natural talent, and another, acquired, the first an innate virtue for practice and experience, constituted of celerity of imagination and firmness of direction, and the second, a virtue acquired by method and instruction. Reason, which rests in the correct use of language, whence derive the sciences, is the method to acquire knowledge – both are common to all, but not equal in all:

“Nature hath made men so equal in the faculties of body and mind as that, though there be found one man sometimes manifestly stronger in body or of quicker mind than another, yet when all is reckoned together the difference between man and man is not so considerable as that one man can thereupon claim to himself any benefit to which another may not pretend as well as he.”

(Op.cit.)

Conflicts result exactly from this equality, when two men, desirous of the same thing, impossible to be enjoyed together or split, become enemies because one will strive to destroy and subjugate the other. But the winner can also be beset by others because of the same thing, and always the strongest will subjugate the others, by force or astuteness, for the time necessary, until there is no other power sufficiently great to threaten him and all those subjugated must acknowledge and admit this domination, for the self-preservation of each of them:

All power comes from force and must be absolute.

The power of a man is viewed as the means he can call on to obtain any visible future good, and can be original or instrumental (see op. cit.).

Discord is of man’s nature, for three main causes: competition, mistrust and glory. If men live without a common power capable of maintaining all in respect, all will be in a state of war against each other, with nothing being unjust, because justice and injustice are notions, like good and evil, that have no place in warfare. In war, force and trickery are virtues. Justice and injustice are, then, virtues of man in society and are not part of the faculties of the body or the spirit. They do not exist, as a notion, in the solitary man, since in Hobbes’ view they are not in the nature of the human being.

Rules of Peace are those that man, still in the natural state, moved by passions like fear of death and the desire for things necessary for a comfortable life, establishes as a basis of accord, as suggested by reason.

Laws of Nature are, to him, general precepts or rules established by Reason, which impose limits on the right of nature, or “jus naturale” (the liberty that each man possesses to use his own power as he sees fit for the preservation of his own nature- see op. cit.). They are:

1. That every man ought to endeavour peace, as far as he has hope of obtaining it.  ( seek peace);

2. That a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men as he would allow other men against himself.  (reciprocal renunciation of rights); 

3. That men perform their covenants made. (source and origin of justice);

4. That a man which receiveth benefit from another of mere grace endeavour that he which giveth it have no reasonable cause to repent him of his good will. ( gratitude);

5. That every man strive to accommodate himself to the rest.  ( tolerance);

6. That upon caution of the future time, a man ought to pardon the offences past of them that, repenting, desire it. (pardon);

7. That in revenges (that is, retribution of evil for evil), men look not at the greatness of the evil past, but the greatness of the good to follow. ( correctness and exemplariness);

8. That no man by deed, word, countenance, or gesture, declare hatred or contempt of another.  ( mutual respect );

9. That every man acknowledge another for his equal by nature.  ( recognition of natural equality);

10. That at the entrance into conditions of peace, no man require to reserve to himself any right which he is not content should he reserved to every one of the rest.  ( modesty);

11. That if a man be trusted to judge between man and man, it is a precept of the law of nature that he deal equally between them. (equity);

12. That such things as cannot he divided be enjoyed in common, if it can be; and if the quantity of the thing permit, without stint; otherwise proportionably to the number of them that have right.  (condominium);

13. That the entire right, or else (making the use alternate) the first possession, be determined by lot. (primary appropriation or primogeniture);

14. That they that are at controversy submit their right to the judgement of an arbitrator. (legitimation of subjective right);

15. That all men that mediate peace be allowed safe conduct.  (guarantee of subjective right).

Hobbes believes that these fifteen laws establish the balance of the antagonistic sentiments natural to man – love of liberty and domination over others – and impose restrictions, by being the true moral philosophy, and concludes that their observance flows from the care for one’s own individual preservation and for a more satisfying life; but since they are contrary to our natural passions, only the terms of some power capable of seeing them respected (right of coercion) can lead to obedience, and hence, the security of social peace. This cannot be realized by a small group or the multitude, but only by a common power armed with representivity.

The State thus derives from something beyond consent or concordance, but rather from a true unit of all them (men), in one and the same person, realized by a pact of each man with all men, so that each man says to each man: “I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner.”

So it is, hence, the artificial animal, the Leviathan, the State, a multitude united in a single person, rigid, respectful, to the condition of a mortal god, because to him we owe, below God Immortal, our peace and defense.

Political rights are those derived from the pact that institutes the State:

                   1.  The monarch:

                   - those subject to him may not, without his permission, renounce the monarchy – there is no human or divine basis for disobedience; no subject may free himself from subjection, under any pretext of infraction on the part of the sovereign; the minority discordant with the majority must yield and consent together with all the rest – or accept and recognize the acts of the elect, or will be justly destroyed by the remaining; nothing the sovereign does can be deemed injury by any of his subjects and none of them can accuse him of injustice – by reason of representivity, all subjects are, by institution, authors of acts and decisions of the constituted monarch for being considered their own acts; he who holds sovereign power cannot be killed justly or punished by any subject (there is always the crime of laesae majestatis); the sovereign is entitled to establish what the doctrines favorable or contrary to peace are; the sovereign has the judicial authority; the sovereign is entitled to make war and peace with other States; the sovereign is entitled to choose all his counselors; the sovereign is entitled to reward with riches and honors and to punish with bodily or pecuniary castigation, or with ignominy, any subject, according to the law that the sovereign himself establishes; it is the exclusive right of the sovereign to grant titles of honor, order and rank of dignity to each (op. cit.).

                   2.  The Subjects:

                   - drained, thus, of individual liberty, with agglutination of all the freedoms and guarantees contained in the social compact in sovereignty, represented by a single person, the monarch, individual or collective - Hobbes concedes no political right to the subjects, they remaining only with their private subjective rights, i.e., those resulting from the relations of civil law – civil rights, in his doctrine, are considered chains that tether the ears of the subjects to the mouth of the sovereign (for the sovereign is whom dictates the sentences).

In this manner, man, free in the natural state, becomes enslaved to the sovereignty of the State, having constituted his only right to elect, at the time of making the social compact, to whom will be his lord, under the fundament of the incommunicability and inseparability of political rights to identify to whom they belong: it is absolutism.

2 – Locke

His doctrine on natural law and political law is systematically developed in his Two Treatises of Government and An Essay Concerning Human Understanding, starting from the principle that there are no innate truths and reason is what determines social evolution, through deduction of unknown truths or propositions already known. He recognizes the existence of a God Creator:

“…our reason leads us to the knowledge of this certain and evident truth,- That there is an eternal, most powerful, and most knowing Being; which whether any one will please to call God, it matters not. The thing is evident; and from this idea duly considered, will easily be deduced all those other attributes, which we ought to ascribe to this eternal Being. If, nevertheless, any one should be found so senselessly arrogant, as to suppose man alone knowing and wise, but yet the product of mere ignorance and chance; and that all the rest of the universe acted only by that blind haphazard; I shall leave with him that very rational and emphatical rebuke of Tully (I. ii. De Leg.), to be considered at his leisure: "What can be more sillily arrogant and misbecoming, than for a man to think that he has a mind and understanding in him, but yet in all the universe beside there is no such thing? Or that those things, which with the utmost stretch of his reason he can scarce comprehend, should be moved and managed without any reason at all?"  (John Locke, An Essay Concerning Human Understanding)

The constitution of man in organized societies was his destiny, because God created him to be social, with appropriate faculties for this, especially reason and the equipage to form articulated sounds (“the most notable instrument and common bond of society”), words, the understandable signs necessary for communication.

Just as philosophers of the Middle Ages based absolute power on biblical texts, Locke did the same to establish the principles of his natural law and the social compact.

In his First Treatise of Government, analyzing the work of the philosopher Robert Filmer, he established as false the principles that thinker had established in Patriarcha, and that at the time were taken as dogmas of authority, to wit:

- Man is not naturally free: Filmer affirms that the paternal power was born with Adam, up to the Diluvium, and afterward continued with Noah and his children until the captivity of the Israelites in Egypt, when this power was dormant, until God reestablished this biblical principle. Locke examines G.i.28, G.iii.26, where Filmer intended to present the basis of paternal power and sovereignty by divine donation over all things and women. And he rebuts: besides not being the occasion to grant such power, because God was punishing Adam and Eve for disobedience, which was directed only at them, not at all humanity, and thus one cannot infer that the Creator had appointed Adam as an absolute monarch. And besides, were it so, nobody could have been born free, since all of humanity was subject to the sovereignty of the first man.

- Sovereignty over children, with power of life and death: Filmer claims this comes from the fact that Adam, just like other fathers, begat them. But Locke proves that God’s words are in the sense of a duty of fathers to rear their children, with there being a return of respect, and not subordination, when they have reached adulthood.

- Ownership of animals and the earth:  Locke demonstrates that there was no natural and private domination of Adam serving as a basis for such sovereignty, since with his death, there had to be a division, and God established no rule on the matter. The old doctrine defended by Filmer had created the basis of the divine rule of non division, so that the earth remained in the hands of the princes, as if they were guardians of Adam’s right, thus creating, on a false basis, the roots of monarchical power.

- The inheritance from Adam: Locke, although he recognizes the need of an heir for any asset, calls attention to the fact that it is not simple to conclude that it is compulsory by divine imposition for there to be a direct line of birth from an elect offspring of Adam to exercise power. As he demonstrates, the Bible itself supplies examples of natural and designated heirs, even within the nearest descendants of the first man. Hence, at the very beginning of time a rule was established that it was not birth and the relation of consanguinity that originate the right to inherit. This had been recognized by the ancient patriarchs, nearest in temporal terms to the Word of God.

Locke begins his Second Treatise of Government with a remission to his demonstrations on the falsehood of the principles that justify absolute monarchy, linked to the assumption of slavery of humanity to the monarch as a biblical establishment of the inheritance from Adam, placing in his Chapter One a summary of his notion of political power:

“Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good.” (Locke, Two Treatises of Government)

And, further on, we can state that he bases political power on the renunciation of man of the state of nature, accepting limits to individual liberties.

And, regarding the state of nature:

“4. To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality wherin all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that the creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.”

(Op. cit)

In the natural state, all have the right to castigate the offender, becoming executors of the law of nature, and in the social state, this right is in the hands of a single person, the magistrate, who has the common right to punish, and although he can remit the punishment set forth in the laws, he does not have the power to remit the satisfaction owed to any particular individual for the damage received. Whence comes the right of the individual to take action against the State.

Locke finds the grounds for applying the law of nature in the Bible, regarding the episode of Cain and Abel: “Whoso sheddeth man’s blood, by man shall his blood be shed”; proof is that Cain was so fully convinced that anyone had a right to destroy such a criminal that he exclaimed after the fratricide: “Every one that findeth me, shall slay me.”

On slavery: no-one can give more power than he possesses; and one who cannot take his own life cannot grant to anyone else power over it. This being the case, even at the time of the social compact, man could not grant absolute power:

“Slavery is so vile and miserable an estate of man, and so directly opposite to the generous temper and courage of our nation, that is hardly to be conceived that an ‘Englishman’, much less a ‘gentleman’, should plead for it ...” (Locke, Two  Treatises of Government).

For Locke, absolute power transforms men into slaves, and slavery was so abominable to him that he began his First Treatise with the passage quoted above. He understands it as a type of servitude.

On property, he believes it existed, even in the natural state, being based on the fruit of man’s work. First this was moveable things, such as animals and fruits of the earth, and afterward, the earth itself, when worked to supply its fruits. According to Locke, it was God who gave the earth to the children of man (Sl  113,24). And labor, being a part of each individual, as part of his substance, transfers this substance to things when work is exercised on them – there is an incorporation of the material good to the man who worked it, this being the introduction of private property and the limits of its extent (extension to the work of man and the conveniences of life). And he calls attention, to demonstrate these principles, to some notions of America:

“   whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England.” (Locke, Two Treatises of Government)

Locke gives writing great importance, since he considers it essential to the development of the arts and sciences, but understands that it rarely penetrates a people until there has been a long period of peace and plenty, and never appears before the constitution of political societies. For this reason, long are the periods of the life of man on this planet that remained in obscurity. But not for this can one fail to conclude that it occurred there, as a result of examining the facts and known consequences.

Political society, according to Locke, is organized only through the agreement of people to join and unite in a community to live in peace, security and comfort with each other, enjoying assuredly the properties they have and relishing the greater protection against outsiders. Thus incorporated, they form a body politic in which the majority have the right to act and resolve for all. Its end is by conquest (external factor), by usurpation and by tyranny (internal factors), or by dissolution of the government, with the extinction of the legislative power, because it is what gives continuity to the social compact, drafting the laws or modifying them, by the power of representing the will of the people: salus populi suprema lex.

In his An Essay Concerning Human Understanding, Locke deepens the examination of man, the formation of ideas, his reasoning, better explaining his innate facilities and acquisition of principles and ideas, such as the natural state of liberty or political organization, in an abstract construction.

For Locke, experience is what forms ideas, and that which is not grounded on it he considers prejudice. Reason is a faculty for reflection that only is found developed in the adult human being (whence the fundament of protection of, and not slavery to, the paternal power), and is important to the process of reasoning. He divides ideas into the simple, which the mind can neither create nor destroy, and that can be from sense, from the various senses, from reflection and sensation; and the complex, formed by the mind, based on simple ideas.

Power is, for Locke, the human capacity to modify, realizing or receiving any change, both in the abstract and concrete world. And regarding liberty, he thinks everyone within himself discovers this “idea of a power” “to commence or omit, continue or terminate various actions ...” . It consists, then, of this idea, “... of the power of a certain agent to do or fail to do any particular action, according to the determination or thought of the mind, by means of which one thing is preferred over another ...”. (Op.cit.)

3 – Rousseau

The doctrine of Rousseau is, par excellence, the social contract and the most expressive phrase of his thinking on the state of nature and society demonstrates that the whole difference consists of the existence or not of limits to man’s freedom. He clarifies his fundaments in his book Discourse on the Origin and the Foundations of the Inequality Among Men:

“ALL RAN HEADLONG TO THEIR CHAINS”.

And he continues:

“…in hopes of securing their liberty; for they had just wit enough to perceive the advantages of political institutions, without experience enough to enable them to foresee the dangers. The most capable of foreseeing the dangers were the very persons who expected to benefit by them; and even the most prudent judged it not inexpedient to sacrifice one part of their freedom to ensure the rest; as a wounded man has his arm cut off to save the rest of his body.

Such was, or may well have been, the origin of society and law, which bound new fetters on the poor, and gave new powers to the rich; which irretrievably destroyed natural liberty, eternally fixed the law of property and inequality, converted clever usurpation into unalterable right, and, for the advantage of a few ambitious individuals, subjected all mankind to perpetual labour, slavery and wretchedness.” (Rousseau, Jean-Jacques, A Discourse on a Subject Proposed by the Academy of Dijon: What Is the Origin of Inequality Among Men, and Is It Authorised by Natural Law?, Translated by G. D. H. Cole, public domain, Internet version rendered by The Constitutional Society)

And he repeats in The Social Contract:

“Man is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they...”. (Rousseau, Jean-Jacques, The Social Contract).

Rousseau was not satisfied with presenting a theory and pointing out errors in the social compact that deprived men of their natural state – his doctrine goes far beyond, touching on themes and presenting solutions (which are specified in his didactic work Emile) to resolve human inequalities in the long run.

Labor and property are, to him, the basis of all inequality among men. He vehemently denounces slavery and absolutism, against Hobbes, establishing the maxim that all political law exists because peoples “have set up chiefs to protect their liberty, and not to enslave them,” so the monarchy cannot be compared to the family paternal power, given the infinite distance between the “ferocious sprit of despotism” and the “sweetness of paternal authority.”

Rousseau asks by which right can those who do not fear for their degradation, to the point of delivering the inalienable asset which is life, (he invokes Locke when the English author rebuts the arguments for absolutism) submit their posterity to “the same ignominy, and to renounce for them those blessings which they do not owe to the liberality of their progenitors, and without which life itself must be a burden to all who are worthy of it....”. (The Social Contract, op. cit.)

Like Locke, he distinguishes State from Government. The first is a moral and collective body, the body politic, and the second is an intermediary between subjects and sovereigns. He points out that there were flaws at the start of the contract, and that time has made them irremediable, giving as an example that not all contracting parties were property owners, and the establishment of this right had already transformed the relationship between the weak and the strong into that between the poor and the rich, since the former only had their freedom to lose, and as their sole asset, they would not dispose of it willingly, to form a body politic that would limit it, to the point at times of confiscating it, while always favoring property (contrarily, because from the start the purpose of the State is the welfare of its citizens, not the protection of their material goods).

Although he does not admit paternal power as the inspiration of political societies, he recognizes that it is the sole and oldest natural society.

He expounds clearly, on the other hand, that by the social contract man only seeks to obey the law, with any force being a superfluous presupposition: if against force there is no resistance, it cannot be understood why there would be the need to legitimize force, because it does not impose a moral obligation or law to be obeyed, since it stands against all this. It is a logical contradiction to submit to the force of a legitimization for it to be exercised – in this case it will no longer be force.

He ironizes the inversion of values in the arbitrary power that supercedes the social contract, concerning a badly constructed State, by the predominance of inequalities exterior to the human (he distinguishes four types of inequalities, in a political society, which are wealth, nobility or condition, power and personal merit). And he proceeds in his analysis:

“I could prove that, if we have a few rich and powerful men on the pinnacle of fortune and grandeur, while the crowd grovels in want and obscurity, it is because the former prize what they enjoy only in so far as others are destitute of it; and because, without changing their condition, they would cease to be happy the moment the people ceased to be wretched.” (Discourse ...,)

“This is the final stage of inequality and the extreme point which closes the circle and touches the point where we set out. Here all individuals become equal again because they are nothing, and since the subjects have no law other than the will of the master, and the master has no other rule than his passions, the notions of good and the principles of justice vanish once more. Here everything is led back to the single law of the strongest and, as a result, to a new state of nature different from the one with which we began, for the first one was a state of nature in its purity, and the last one is the fruit of an excess of corruption. … The uprising which ends by strangling or dethroning a sultan is an act every bit as lawful as those by which the previous day he disposed of the lives and the goods of his subjects. Force alone preserved him, and force alone overturns him. Thus, everything occurs according to natural order….” (The Social Contract)

Hence, having placed his ethical principles, lamenting the fact that there was no, at the time of the pact, correction of the distortions of the customs that led to inequality, or perhaps that they began at that moment (while in a natural state, man does not establish comparisons with other men, because he does not need them for social cohesion, because this does not exist and was not obligatory, as it was later), Rousseau, who calls the natural state as savage, and that man lives socially in a policed status, makes at the end of Discourse a comparison between one and the other: the first lives in and of itself and the second is always outside of itself and begins to exist in function of the judgment of others.

Rousseau admits in his Social Contract, unlike some prevailing theories, that there really is the law of the strongest: the strongest will never be sufficiently strong to always be lord, and for this reason force becomes law (of the strongest), but at this point, already transformed into law, which also brings obligations, it has lost its characteristics. The whole error of the social contract, in its formation, was the acceptance by men, who are party to it, of all the rules imposed by the supposedly strongest (it was the richest and not the most powerful, because if it were, they would not have needed the others to legitimize their actions – and this, unfortunately, was not perceived by the poorest, obfuscated perhaps by this approximation between inequalities, which would be taken for equality, when at most there would be leveling).

Another notion that Rousseau conveys to us is that men are not naturally enemies, but the relationship among things, and not the relationship among men, is what establishes the state of war. For this reason he condemns property and the use we make of it, to enslave man by work. This was a deviation from what should have in reality been the pact:

         "Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.” (The Social Contract)

Regarding the definition of political law, it brings us the concept of what man loses by the social contract (natural liberty) and what he gains (civil liberty and ownership of what he has – if he has nothing, he acquires nothing). This civil liberty is the object of political rights, described next in The Social Contract, as the content of the laws, with the purpose of all legislation being summarized in two principles: liberty and equality.

Thus closing Book II of The Social Contract, Rousseau passes to the forms and organization of the State and Government and its extinction in Books III and IV. He then reflects on the exercise of sovereignty with limits to the sovereign himself, besides giving suggestions to improve existing conditions (see Emile) and indications of good and bad Government.

IV – C O N C L U S I O N

So now, from the above exposition we can observe that the three great thinkers agree on some objective points: the existence of natural law, a natural state, and political rights resulting from the social contract, and even on the finality or power, which to all is the welfare of the people.

They diverge on the fundaments of such postulates of law.

Locke believes that man is not born free, because of the existence of a paternal power and sovereignty granted by divine donation to Adam, and there he finds the origin of societies though the faculties granted by God, supported at times in the Bible, and considers man to be a social animal. He gives great weight to the articulating power of words – to him, language is an innate characteristic of man, from his origins, granted to man to achieve his destiny of association, because the Creator thus determined it – if it were not for the agglutinating power of the word, the species never would have developed. His analysis, profound in this aspect, was purely philosophical, unlike what would come in the theories of the evolutionists. He addressed the theme at the abstract level. He holds the right to property is something that brings men together, not drives them apart, unlike what Rousseau proposes. And work is the basis to legitimize property and delimit its extent. The sovereignty exercised by the monarch, comparable to that of fathers over children, had Adam as the founding male in the direct line of all sovereigns, placing paternal power as a concession of God. And the origin of sovereignty by divine grace, a doctrine firmly defended by Robert Filmer, but that at the time of Locke no longer in vigor in continental Europe.

Rousseau went further in the analysis of labor, holding that it enslaved those bereft of property, and is an element of inequality, not of equality, in opposition to what Locke believed. Even though he considered the difference between the rich and poor, proprietors and non-proprietors, he believed that labor, after the pact, accentuated inequalities.

Locke and Rousseau, besides being liberal thinkers, were democrats, because in their doctrines they held that the State should seek the common good. And also, they held that the compact supervened as law. The latter, although he believed that this appeared initially as an imposition of a determined man who exercised force not for being the strongest, but rather the richest, holds that it lost this characteristic as this man also needed the consent of the rest to defend himself and to legitimize the pact, and yes, then, it was transformed into a law.

The third of these thinkers, Hobbes, defends the idea that the compact came from the law of the strongest and continued with the necessity of force not disparaged, through the deflation of political rights and guarantees and the unlimited power that should be given to the sovereign. The distortion of this power with unlimited use is what leads to despotism and absolutism, the fault of the very constitution and development of the State, which he considers as being like an artificial animal, with its own life, independent of its members – the Leviathan – a creation of man, imitating nature, who lost control over it, becoming its victim. As its creator, man himself imposes his characteristics on it, including the negative ones.  And he attributes the loss of control over the State (of the creator over the creature) to the fact that men left it out of the social compact, which then became independent over all men individually and over society as a whole. But exempting the Absolute Monarch from responsibility, he, like all others, would be submitting to the social compact – in the position as the strongest, evidently, but a position to which he has been raised justly not by his own decision, but by that of society. He defends the continuous use of force because he believes human nature is discord, and if force did not exist to contain it, men would always be at war among themselves.

Hobbes, unlike the two other thinkers, was an absolutist, and as he distinguished the Sovereign from the State, imputed to the latter the maladies that in reality result from the excess power of the monarch, laying all the blame for despotism on the Leviathan-State..

From what we can observe from this brief analysis of the works of these three great humanist philosophers, we have: in reality, although with diverse tendencies and starting from principles lodged in theories in principle considered opposed (that to creationism and that of evolutionism), in fact all three converge in the sense of the existence of natural laws and political laws, the latter coming after the former.

Natural laws are inherent in man’s natural state. Political laws, subsequent in time, result from a social compact or contract, in a phase when the human is already gathered in society.

For Locke, gathering in society is mankind’s destiny, since we are social beings by divine predestination, and hence full individual liberty is not one of our characteristics, because society presupposes its inexistence. This is a denial of the free will in choosing our political destiny: the submission to a sovereign is not properly a natural law, but rather a divine postulate, through the patriarchal power of Adam transmitted in a direct line to those already born with the predestination to govern – the sovereignty was exercised initially with the same principle of power over life and death of fathers over their children. The flaw in this systematization about natural and political rights is that it fatally leads to absolutism and despotism. But not even for this can one ignore the value of the great postulates contained in his theory, notably on the state of nature and the definition of the political power. To him, however, the POLITICAL POWER has divine origin.

For Hobbes and Rousseau, in contrast, full individual freedom is inherent to the human being, who at some moment of his existence had to renounce it in benefit of the very survival of the species. One cannot find in them the fatalism of the first philosopher, but instead a decision of the individual free will in favor of the collective. The human being is not, then, a naturally social species – the association came from the need for protection. In Hobbes, this necessity was a result of the establishment of reciprocal protection, because discord is inherent to man’s nature, for three main causes, namely competition, mistrust and glory. And political rights come exactly from the need for the existence of a common power able to maintain respect in all humans, without which all will live in a state of perpetual warfare. To him, then, POLITICAL POWER comes from force and must be absolute in the defilement of power is imputed to the State, which he calls LEVIATHAN. Even the monarch has to be subject to it, an artificial animal, created by man, a natural animal, in his image and similarity, and in this form, with all the defects of its creator, who have grown too much in detriment to the qualities, in a process in which men cannot manage to maintain control. This Leviathan was created, also, because of a social compact, and hence with the exercise of free will. The fatalism of Locke is absent.

Rousseau had a greater influence on modern humanistic thought, exercising a huge influence on the currents of thinking that led to the French Revolution, along with the ideas of Comte, of liberty, equality and fraternity. He opposed the fatalism of sovereign power by divine determination of Locke and the nature of discord inherent in the human species, defended by Hobbes (a doctrine of political rights “of force by force”). His doctrine is based exactly on the social contract, after a profound study of the origin of inequalities. To him, also, POLITICAL POWER comes from free will. He believes, however, that at the time humans entered into the social contract, which entailed waiving individual freedom by choice, out of the recognition by the framers of the advantages of a political establishment, they were not aware of the dangers of abuses. And those who foresaw these dangers were exactly those who intended to practice the abuses to their own individual benefit. And the error, to him, was exactly in this sense: had they foreseen the eventual abuses in the social compact, they would have included clauses to inhibit them, which was not done. And he sums the consequences of this error, which affects us to this day, with the following phrase:

“ALL RUN HEADLONG TO THEIR CHAINS”

The great lesson we can learn from all that has been analyzed is that if there was indeed a SOCIAL COMPACT OR CONTRACT, it can be revised, since the human being has evolved over time and his natural state – whether it has been belligerent or peaceful – no longer has all its initial characteristics, by the accumulation of collective and individual existential experiences, besides the changes in the environment in which we live, with the introduction of new needs and the disappearance of so many old ones. But the survival of the species will always be in the collective subconscious as an immutable Law of Nature, a right-obligation above all and prevailing over natural and political rights – and it is this Law that will lead society as a whole to the protection of generations to come.

(1) William Prynne  was a puritan pamphletarian that   published a pamphlet (critical) to the theater, when the Queen and  ladies of   the   court   assayed a part  and, therefore, was condemned and had executed a sentence of  loss of  the ears. In 1637 he distributed another pamphlet, weaveing   critical to a member of the government. Of  this making, the multitude, congregated in the  square of the martyrdoms, rebelled itself: the sentence was to have the cheeks marked with iron in live coal with letters S.L. (Seditions Libeller) and to have cut what was remained to him of the ears. When the executioner initiated the execution, heard a shout of revolt of  all the gifts, front the similar terror. And this shout echoed in all England, even though inside  of the Real Palace – and it  gave fall to  of the Monarch. A new age was initiated thus, where the  rights of the  citizen  started to be recognized, thanks to the  reaction of  the collectivity.

V – B I B L I O G R A P H Y

Encyclopedias:

Barsa

Delta-Larousse

Books:

DUGUIT, Leon

         Fundamentos do Direito, translated by Eduardo Salgueiro, 2nd. ed., Editorial Inquérito, Lisbon, Portugal.

HOBBES, Thomas de Malmesbury

       Leviathan, University of Oregon Online Edition.

LIMA, Hermes

        Introdução à Ciência do Direito, 27th. ed., Ed. Biblioteca Jurídica  Freitas Bastos, Rio de Janeiro, Brazil.

LOCKE, John

        Two Treatises of Government, The Online Library of Liberty, open-source version: John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764)

LOCKE, John

        An Essay Concerning Human Understanding, made available online by Roger Bishop Jones.

PONTES DE MIRANDA,

         Comentários à Constituição de 1936, Brazil.

ROUSSEAU, Jean-Jacques

         The Social Contract, The University of Adelaide Library Online Edition.

ROUSSEAU, Jean-Jacques

         Discourse on the Following Question, Proposed by the Academy of Dijon: ”What is the Origin of Inequalities Among Men?”, translated by G. D. H. Cole, public domain, Online version provided by The Constitutional Society.

SOARES, Orlando

   Direito Constitucional, Brazil.

                                             Rio de Janeiro, October 30, 2004.

                                                     Lia Pantoja Milhomens

                                                              Author