“The state of Nature has a law of Nature to govern it, which obliges everyone, and Reason, which is that law, teaches all mankind who will consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions…” – Locke, Two Treatises of Government, 1683
How do John Locke’s conceptions of the state of Nature and the law of Nature differ from those of Thomas Hobbes?
To what extent do these differences inform their use of the metaphor of the social contract?
Which of the theories is more pertinent to a contemporary understanding of rights? Give reasons for your answers.
“The question whether humans had ever lived in a state of natureaˆ¦has been a central theme in political philosophy”  , Hobbes and Locke were two philosophers who attempted to prove and justify this theory. This essay applies both of their theories and discusses whether either is used in contemporary understanding of rights and therefore which is more pertinent of the two. The theories are compared against each other, and critiqued from other perspectives.
Both Thomas Hobbes and John Locke contributed a great deal for the political philosophy, however they were far from agreeing with each. The philosophers were exposed to a chaotic time in the England history and lived through a civil war. Experiencing this, both philosophers wrote on the origin of man, how state of nature affects a man, and how a contract transforms from this state of nature to a civilized society in which the people are controlled by a government. It is apparent that Hobbes saw the war in a more pessimistic view, therefore prompted him to see the nature of man in a negative light. Locke is the more positive of the two philosophers and has more faith in the state of nature. 
Locke described his State of Nature as a “state of perfect freedom”  . Even without any government to punish people for wrong-doings, it is not a state without morality, Law of nature is given to us by God, which commands that we do not harm others with regards to their ‘life, health, liberty, possessions  ‘. State of war only happens if a person steals ‘property’ from another or attempts to make another into a slave.
Hobbes’ State of nature differs greatly from Locke’s. It’s a place where men are equal and naturally and exclusively self interested, however there is no power to make men cooperate thus the Hobbesean state of nature would be unbearably brutal and people would constantly live in fear of losing their lives to another, “solitary, poor, nasty, brutish, and short.”  . However because a man is a reasonable creature, they recognise the law of nature thus are willing to pursue peace. They do so by constructing a social contract that will offer them a better state of life than that they experience in the State of Nature “Covenant of every man with every man, in such manner as if every man should say to every man, I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition, that you give up your right to him and authorise all his actions in like manner”  .
The Hobbesean social contract transforms the malicious world that the state of nature is into a pleasant living environment. To create the social contract one must agree to establish a society by collectively renouncing the rights they had against one another in the State of nature, thus they must place the power to one person or assembly of people with the authority and power to enforce the initial contract. Therefore they must agree to live under common laws and the Sovereign would be placed under power of being able to punish if the contract is broken. 
Even though Locke’s state of nature is a humane, equal, free place, one decides to enter into political society by entering Social contract because the State of Nature can deteriorate, people can become competitive and seek to gain absolute power, and they may try to seize each other’s property. Therefore a similar idea arises and one can’t help but compare this state when everything degenerates to Hobbesean State of Nature. 
Hobbes believes that monarchy is best form of Sovereign rather than majority as a government. Democracy was portrayed by him as chaotic, and although he never said that democracy could not be the higher power, he felt that with a monarch it’s the only guarantee of peace. Locke, on the other hand, preferred the idea of majority as a government to run the society. Critics have said that Hobbes made the best-known attempt to found non-democratic government on the consent of the governed. However he has also been criticised for extreme image of politics by allowing the Sovereign to do anything he pleases, without need for Parliament consent or anything.
Hobbes distinguishes between right and law, saying, “they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbeare; whereas LAW, determineth, and bindeth to one of them: so that Law, and Right, differ as much as Obligation and Liberty; which in one and the same matter are inconsistent.” 
Whilst the idea of relinquishing your rights to a Sovereign seems extreme, Hobbes has reiterated that a person gets back a great deal of the liberty of the state of nature, as the law is not there to cover everything but to provide protection, otherwise you are free to act as you choose. Hobbes incorporated Galileo’s principle of inertia in his writings and thus portrayed that there is nothing free apart from movement of bodies, and depriving this movement would mean limit on freedom but the laws do not obstruct the body, instead they cause to make choices, encouraging the will, “Unnecessary lawes are not good lawes”  .
Hobbes focuses on substantive rights as opposed to civil liberties. Substantive rights are rights such as right to food, water and shelter. Civil rights are more of a focus for Locke, rights such as right to life and freedom of expression. Hobbes’ right of self-preservation is a right to do anything that one believes is necessary for one’s preservation  . This right is now included in most country’s legal systems, such as in UK law there is a right to self defence. Hobbes’ idea of self defence is also mentioned in the judgement of R v Jones (Margaret) and others  , thus showing how his work can be used in contemporary society. Jean Hampton  , a modern philosopher, criticised Hobbes for limiting the power of the sovereign, albeit not deliberately, she does argue that if one takes the right to self-preservation seriously, then Hobbes’s argument for establishing an absolute sovereign is unsuccessful. She quotes Richard Cumberland, a philosopher of the 17 century, to illustrate her point “Whilst Mr Hobbes with one hand speciously offers up to kings and monarchs royal gifts and privileges, he with the other, treacherously plunges a dagger into their very hearts”  . Filmer also criticises Hobbes’s approach for people to retain their power of self-preservation as it “makes the subject the judges of whether or not the sovereign has endangered their survival”  and therefore undermines Hobbes’s writings about Sovereign as a supreme authority.
Under Locke the Sovereign can be resisted if he violates ones property. Locke was against absolutism, he believed that one thing that you cannot do if entering a social contract is to give the Sovereign the absolute authority because an absolute ruler is outside of the law. Locke would not condone a contract that gave power of life or death to the ‘master’ as he believed of right to be free “For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases” 
Both Hobbes and Locke think of power in abstract terms, therefore power isn’t something that people naturally have. Power is a function that can get delegated by the people, thus once entering the covenant one gives that power to the Sovereign.
Locke borrows some ideas from Hobbes when writing his texts such as necessity for establishing some kind of civil society. There is a need of a common judge to arbitrate between the peoples partial judgements. This idea is especially seen in Hobbes’s writings, as without the judge to arbitrate the state of nature is “nasty, brutish and short”  .
John Locke was an equality radical and although Hobbes did reiterate equality in his text “that every man acknowledge another for his equal”  , Locke “accorded basic equality the strongest grounding that a principle could have”  . Dworkin agrees with this view  and that it is an obvious and accepted truth that the governments must treat their people as equals, and that no one in the modern society could get away with denying this. This view has also been adopted into a law right of the Universal Declaration of Human Rights “All are equal before the law”  (Article 7). However Locke’s ideas have also been criticised for lacking equal treatment for land owners and non land-owners alike, as chapter on property (ix) leaves those without property out in the cold.
The image Hobbes uses of the Sovereign, ‘Leviathan’, is a biblical image of a whale. Hobbes also portrays it as a metaphorical person; the soul of the ‘Leviathan’ is the actual concept of the Sovereign, the head is the Sovereign himself and the money is the blood that circulates through the various important organs to keep the body functioning. Many philosophers associate the ‘Leviathan’ with an evil image, but Shakespeare uses the term to express speed and suggest strength. Hobbes use of ‘Leviathan’ would make little sense if considered as ‘evil’, he treats the metaphor of the ‘Leviathan’ as a saviour of the people and the provider of order. “Leviathan [is]aˆ¦ that mortal God, to which we owe under the immortal God, our peace and defence”  No matter how bad things may appear under the Sovereign (Leviathan), they would be much worse in the state of a civil war or other form of the state of nature.
Hobbes concluded that even a harsh tyrannical ruler was preferable than to ” be left in the condition of warre he was in before; wherein he might without injustice be destroyed by any man whatsoever”  . This theory can be seen demonstrated in the modern society, at the current conflict in Iraq. Would things be better off with Sadam Hussein still in charge? The violence has now continued for years with hundreds of thousands of deaths, both soldiers and civilians.
Hohfeldian analysis on rights does not allow for changes in rights, for example for one type of right to become another type of right. Thus in Hobbes’s writings the right to full preservation transforms from being a simple liberty, to a protected right, once it becomes protected by the sovereign, but that it does not change into a Hofeldian ‘claim right’ because it is not directly related with the duties of the Sovereign, nor does the right itself involve any such duties. Therefore rather than grouping Hobbesian rights into categories they don’t quite fit, it may be better to just describe the rights as Hobbes writes about them and try to deliberate of their implications without using the Hohfeldian terminology. This leaves the question of whether the Hohfeldian analysis itself is actually erroneous, when it is applied to political rights rather than legal rights. 
New constitutional democracies tend to go for the ‘result-oriented model’ which Dworkin, a modern philosopher, approves of. Rights are now a secure part of most existing democracies; and this is assumed to be a “good thing”  . Judges will therefore have a fundamental role in their analysis of law. Supreme Courts decide significant matters of principle and policy. This differs from Hobbes’s views, who consider the Sovereign alone to have the only power to decide legal matter.
Thomas Jefferson’s contribution in the Declaration of Independence shows the “Founding Fathers’ intellectual indebtedness to Locke as well perhaps as a certain degree of stylistic Borrowing”  . Thomas Jefferson also played a part in drafting the Declaration of the Rights of Man and of the Citizen. The first three numbered provisions show a remarkable similarity to Locke’s writings:
“1. Men are born, and always continue, free, and equal in respect of their rights. Civil distinctions, therefore, can be founded only on public utility.
2. The end of all political associations is the preservation of the natural and imprescriptible rights of man; and these are liberty, property, security, and resistance of oppression.
3. The nation is essentially the source of all Sovereignty; nor can any individual, or any body of men, be entitled to any authority which is not expressly derived from it.” 
Right of protection of property was a big focus for Locke in the Second Treatise of Government and is one of the main reasons on why a man would relinquish his rights of the State of Nature to enter into a Commonwealth. He stated that possessors may do whatever they wished with their property as long as they do not invade the rights of others. According to Locke the right to property and the right to life are inalienable rights, and when entering a ‘covenant’ the State then possesses a duty to protect those rights for individuals. In the contemporary society this is now incorporated in European Union First Protocol Article 1: Protection of Property: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” 
In the current terrorism period, interests in Locke’s writings have been revived and in particular Locke’s idea of ‘prerogative’ powers that might allow the supervisory to take action against the unpredictable events such as terrorist attacks. For Locke, prerogative is ‘nothing but the power of doing publick good without a Rule’  . Locke elucidates that the ‘prerogative power’ occurs when the legislators cannot foreknown and provide legal powers for every plausible situation where the safety of the people may be threatened. The legislature may also not be able to act as promptly when presented with a major threat. In either case, proper defence of the community must be at the forefront of the mind, therefore resorting to ‘prerogative powers’ can be justified as they help to preserve each person’s life, health, liberty and possessions.
Hobbes described the rights in Leviathan as a “Right to govern their own bodies, enjoy aire, water, motion, waies to go from place to place; and all things else without which a man cannot live, or not live well”  thus showing Hobbes endorsing freedom of movement. This is seen nowadays in contemporary society in EU Directive 2004/38/EC of free movement of persons. Thus Hobbes’s ideas are still being used in support of creating a successful society. “Everyone has the right to freedom of movement” (Article 13 of Universal Declaration of Human Rights)
The idea of slavery is discussed by both Hobbes and Locke in their writings: “no man, can, by agreement pass over to another that which he hath not in himself, a power over his own life.”  In the modern world the right to be free from slavery is contained in most constitutions, for example Article 4 of the European Convention on Human Rights (ECHR)  . Article 4 has two parts:
The first part of Article 4 states that nobody shall be held in slavery or servitude
The second part states that nobody shall be subjected to forced or compulsory labour. Hobbes however argued that when people get conquered in the war, the conqueror then posses the right to kill them. Hobbes’s way of thinking in modern society now would be found to be inhumane.
Locke asserted that criminal wrongdoing should be met with a punishment. However the power a person exercises over criminal wrongdoers is “no Absolute or Arbitrary Power,”  . A person may only “retribute” to a criminal “what is proportionate to his Transgression, which is so much as may serve for Reparation or Restraint.”  This mirrors how the modern society punishes criminals, as the justice system only punishes according to the crime committed.
This essay has assessed each theory and although the two philosophers have many differences in opinions, they both come to similar conclusion that a higher power is needed to control society, as ‘state of nature’ cannot be lived in.
It is also apparent from this essay that The ghosts of Hobbes and Locke are still alive today in our government. Both of the philosophers still play a part in contemporary understandings of rights. Whilst neither of the theories are ‘perfect’, Locke’s is more applicable to the modern world. Hobbes’s idea of “an absolute leader is necessary to overcome self interest behaviour and achieve social order”  in modern society such ruler would be viewed as tyrannical. The application of Locke’s work into the American Declaration of Independence shows that Locke’s work is still considered as the foundation to a successful government.
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