summer patriot, winter soldier

john locke on the individual's right to wage war

essay topic  --  the right of self defense/war belonging to an individual, even while participating in civil society  -- 

chapter iii

of the state of war

book 2, treatises of government, john lock, paragraphs 16 - 21

16.  the state of war is a state of enmity and destruction; and, therefore, declaring by word or action, not a passionate and hasty, but a sedate, settled design upon another man’s life, puts him in a state of war with him against who he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or anyone that joins with him in his defence and espouses his quarrel; it being reasonable and just i should have a right to destroy that which threatens me with destruction; for, by the fundamental law of nature, man being to be preserved as much as possible when all cannot be preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion, because such men are not under the ties of the common law of reason, have no other rule but that of force and violence, and so may be treated as bests of prey, those dangerous and noxious creatures that will be sure to destroy him whenever he falls into their power.

17.  and hence it is that he who attempts to get another man into his absolute power does thereby put himself into a state of war with him, it being to be understood as a declaration of a design upon his life; for i have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he got me there, and destroy me, too, when he had a fancy to it; for nobody can desire to have me in his absolute power unless it be to compel me by force to that which is against the right of my freedom, i.e., make me a slave.  to be free from such force is the only security of my preservation; and reason bids me look on him as an enemy to my preservation who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me thereby puts himself into a state of war with me.  he that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a design to taken away everything else, that freedom being the foundation of all the rest; as he that, in the state of society, would take away the freedom belonging to those of that society or commonwealth, must be supposed to design to take away from them everything else, and so be looked on as in a state of war.

18.  ….  i have no reason to suppose that he who would take away my liberty would not, when he had me in his power, take away everything else.  and therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i.e., kill him if i can; for to that hazard does he justly expose himself whoever introduces a state of war and is aggressor in it.

19.  and here we have the plain difference between the state of nature and the state of war which, however some men have confounded, are as far distant as a state of peace, good-will, mutual assistance, and preservation, and a state of enmity, malice, violence, and mutual destruction are one from another.  men living together according to reason, without a common superior on earth with authority to judge between them, is properly the state of nature.  but force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow-subject.  thus a thief, whom I cannot harm but by appeal to the law for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge; nor the decision of the law, for remedy in a case where the mischief may be irreparable.  want of a common judge with authority puts all men in a state of nature; force without right upon a man’s person makes a state of war both where there is, and is not, a common judge.

20.  but when the actual force is over, the state of war ceases between those that are in society , and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury and to prevent future harm.  but where no such appeal is, as in the state of nature, for want of positive laws and judges with authority to appeal to, the state of war once begun continues with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future: nay, where an appeal to the law and constituted judges lies open, but when the remedy is denied by a manifest perverting of justice and a barefaced wresting of the laws to protect or indemnify the violence or injures of some men, or party of men, there it is hard to imagine anything but a state war; for wherever violence is used and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent by an unbiased application of it to all who are under it: wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy ins such cases  --  an appeal to heaven. 

21.  to avoid this state of war  --  wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide to the contenders  -- is one great reason of men’s putting themselves into society and quitting the state of nature; for where there is an authority, a power on earth from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power.  had there been any such court, any superior jurisdiction on earth, to determine the right between jephthah and the ammonites, they had never come to a state of war; but we see he was forced to appeal to heaven: “the lord the judge,” says he, “be judge this day between the children of israel and the children of ammon” (judges xi. 27.), and then prosecuting and relying on his appeal, he leads his army out to battle.  and, therefore, in such controversies where the question is put, “who shall be judge?” it cannot be meant, “who shall decide the controversy”; everyone knows what jephthah here tells us, that “the lord the judge” shall judge.  where there is no judge on earth, the appeal lies to god in heaven.  [e.g., trial by combat: jjjay.]  that question then cannot mean: who shall judge whether another hath put himself in a state of war with me, and whether I may, as jephthath did, appeal to heaven in it?  of that I myself can only be judge in my own conscience, as I will answer it at the great day to the supreme judge of all men.

-- john locke

the right of the individual under "locke's" natural law concepts to wage defensive war against islam.

islam in its various guises has declared war and vowed the subjugation of the west, and vowed the destruction of israel: its institutions of theology teach these aims, and entire societies seem mobilized from pre-school to military to implement them.  it is a pan islamic “agenda.”  through al queda, black september, the plo, hezbollah and hamas, islam fights and has fought and killed in a more or less systematic way to carry out its declarations and vows, with various degrees of success for the past 40 odd years. 

oddly enough, the political, governmental and military institutions of the west have been very slow to recognize that islam as a religion and political institutions takes its avowed purposes very seriously, and save for the united states pressing of its campaigns in afghanistan and iraq, and israel defending itself from time to time in putative and seemingly fruitless wars, the west seems entirely oblivious to the threat posed by islam.  or, even worse, the intellectual and governmental elites of some western systems, most notably the european common market legislative and social policy bodies, almost seem to welcome and encourage the triumph of islam over indigenous european states: it is almost as though the euro bureaucrats see this as a way to wiping out once and for all any vestige of european nationalism as a source of rivalry to the institutions of the monolithic euro bureaucracy. 

the question becomes for the individual therefore, seemingly adrift in a hostile world without the active protection of the nation state to which he belongs against this threat, or even worse, faced with the culpability of politicians either oblivious to or seemingly in favor of islamic conquest, what can i do as an individual to protect myself and my heritage, and do I have any support in law, ethics or morality in acting as an individual, apart from my government.

when a man walks to the dock to defend his acts before history, what is he to say?

so, i decided to look, and to think what i might say if called to task for my acts.

and, oddly enough, i am finding a lot of material which supports the right of the individual to protect him and his heritage, which might conceivably protect my right and your right to act.  and, this support is in the writing of john locke.  a more authoritative, pre-eminent and prestigious voice would be hard to imagine, as locke is as central to western political thought as montesquieu or rousseau, or plato or aristotle: few colonial politicians and fewer lawyers would not have had his writings immediately to hand.[1]  another look at john locke, therefore, is in order, precisely on this point, and his writings offer clear authority within the context of political theory central to the assumptions which support our political institutions, for the assertion that individuals have a demonstrable and legitimate claim to assert a right of self defense against the attacks, depredations and verbal declarations of war by islam against the west.

in an earlier post i advanced the position that the writings of john locke and william blackstone assert the right of men to protect themselves by those who would attack our society with an intent to destroy it, by those who do not share, and indeed, decry, the underlying values which support our society and way of life.  i argued that in the writings of these men lies the assertion that a man may protect himself, even to the point of killing his attacker, any individual or member of a group from without his society or civilization that attacks either him or seeks to destroy his way of life or enslave him.

the key to grasping locke’s position in this lies in the following observation, quoted in the preceding post:

and thus it is that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from everybody, and also to secure men from the attempts of a criminal who, having renounced reason -- the common rule and measure god hath given to mankind -- hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind; and therefore may be destroyed as a lion or a tiger, one of those wild savage beasts with whom men can have no society nor security.

such persons do not deserve, are not to be accorded the protection of the law in a civil society, for by renouncing reason and rejecting the terms of the social compact by which the rest of us are bound, as indeed we are, they have placed themselves outside of our society, e.g., they have placed themselves outside the pale of law.  they have, in effect, by the assertion of hostility against us, placed themselves into a state of nature with regard to us.

in a later chapter of the 2^nd treatise of government, locke expounds the view that anyone who announces a design to take another’s life or to enslave that person has put himself into a state of war as against that person.  it seems a reasonable inference that any such person who announces a design to destroy an entire society or to enslave that society, has placed himself into a state of war with that entire society.  be that as it may, and whether you are convinced by the assertion of the inference, this is what locke had to say about “declarations of war”:

16.  the state of war is a state of enmity and destruction; and, therefore, declaring by word or action, not a passionate and hasty, but a sedate, settled design upon another man’s life, puts him in a state of war with him against who he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or anyone that joins with him in his defence and espouses his quarrel; it being reasonable and just i should have a right to destroy that which threatens me with destruction; for, by the fundamental law of nature, man being to be preserved as much as possible when all cannot be preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion, because such men are not under the ties of the common law of reason, have no other rule but that of force and violence, and so may be treated as bests of prey, those dangerous and noxious creatures that will be sure to destroy him whenever he falls into their power.

here again we find the identical rational for positing the right of an individual to protect his life and liberty even to the point of killing another, if need be.  it is fundamental to reason, and it is fundamental to the compact that each of us enters into with our fellow citizens and our sovereign that man must be preserved in his full complement of rights, chief amongst that compliment being the right of life, and when an aggressor has declared “… by word or action, not a passionate and hasty, but a sedate, settled design upon another man’s life…”, he has negated and attacked, and, enfeebled, a fundamental tenant of the compact.

such aggressor are no longer “… under the ties of the common law of reason,” and have exposed themselves to a situation in which their lives are governed “… by no other rule but that of force and violence.”  in short, they have made themselves liable to destruction by those upon whom they have forced war and conflict, by their renunciation of the assumptions and governance of the rule of law.

to use a phrase all of us are comfortable with, but do not think very often to understand the implication of the very words, those aggressors have made themselves “outlaws.”  who among us has not seen the western movie with the “wanted” poster, offering a reward for the “outlaw” who is wanted “dead or alive.”  it should be becoming clear to you that these two phrases were redundancies, in a very real sense, for by being declared outside the protection of the law that person no longer had the protection of the law, and to the law, it became of matter of entire indifference whether such person were apprehended in a kindly fashion, or by killing.

in the most trenchant sense, john locke has simply argued that those who make a “… settled design upon another’s life, …” have, by the violation of the most fundamental tenant of the social compact, the preservation of and the respect for life, rendered themselves into the state of “outlawry.”  they are not deserving of, and do not have, the protection of the law, of civility, of civilization.

again, lest there be any doubt but that locke posits the right of an individual to kill him or those who has by word or deed declared war on him, the direct words of locke:

it being reasonable and just i should have a right to destroy that which threatens me with destruction; for, by the fundamental law of nature, man being to be preserved as much as possible when all cannot be preserved, the safety of the innocent is to be preferred; and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion, because such men are not under the ties of the common law of reason, have no other rule but that of force and violence, and so may be treated as bests of prey, those dangerous and noxious creatures that will be sure to destroy him whenever he falls into their power.

grasping locke’s analysis in all of its subtleties lies in the fact that his attention and analytical focus shifts from discussing the rights of a person to defend himself solely in the state of nature, to the dimension of that defense under natural law in the state of nature as well as under the civil law of england.  for to be sure, locke comprehends this right of a man to defend himself even unto killing in two circumstances, even under the social compact and resulting command of a subject to obey the magistrates law of england.  one must be clear about this: locke is saying that even the law abiding citizen living under the social contract may resort to his rights under to natural law, given the appropriate circumstance.

the first circumstance is the inability of the civil magistrate to furnish a remedy for our aggrieved victim of aggression by one who would kill him.  says locke, about the state of war existing in this circumstance:

men living together according to reason, without a common superior on earth with authority to judge between them, is properly the state of nature.  but force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow-subject. 

because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge; nor the decision of the law, for remedy in a case where the mischief may be irreparable.  want of a common judge with authority puts all men in a state of nature; force without right upon a man’s person makes a state of war both where there is, and is not, a common judge.

the second circumstance giving rise to the individual citizen’s right to make war against his aggressor, even as he lives under the civilization giving social compact, is the purposeful connivance or benign neglect of the sovereign from protecting him from the lethal designs of an aggressor, (and, it must be recognized, that locke views the aggressor in this instance as foreign or domestic, though it must be remembered, as to each, each such aggressor lives in “outlawry” beyond the beneficence of the social compact):

where an appeal to the law and constituted judges lies open, but when the remedy is denied by a manifest perverting of justice and a barefaced wresting of the laws to protect or indemnify the violence or injures of some men, or party of men, there it is hard to imagine anything but a state war; for wherever violence is used and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent by an unbiased application of it to all who are under it: wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases  --  an appeal to heaven.

please note: in each circumstance in the two paragraphs above, locke comprehends the exercise of the right of war by a citizen who is living in a magisterial society governed by law.  in the first paragraph, locke asserts this right for the man “…though he be in society,” and contemplates the necessity of the exercise of such right “… because there is no time to appeal to a judge, …,” or the remedy might be irreparable if appeal to the judge is taken, and that “… force without right upon a man’s person makes a state of war both where there is, and is not, a common judge.”

so, according to locke, where the aggressor declares his cold and calculated attempt to kill a person, that alone gives him a right to wage war upon his aggressor, in and of itself, even though that person lives under the social compact and has a magistrate available to him.  a second basis for the exercise of such right according to locke might be characterized as “exigent circumstances,” or, simply put, necessity to protect one’s life right then and there.

the second paragraph contemplates a situation in which the magisterial authority is in connivance with the aggressor, or is simply incompetent to protect the citizen, whether from neglect or ignorance, it must be supposed the result being the same.  note what locke says:

“… the end whereof [the law & the duty of the magistrate] being to protect and redress the innocent by an unbiased application of it [the law & the protection of the magistrate] to all who are under it ….”

here is william blackstone’s position and explanation of the reciprocal rights existing between the subject to receive protection because of his fealty and the rights of the sovereign to exact obedience from his subjects in return for his protection.  i have argued in the post before, that the sovereign failing in his duties in this regard, or purposefully violating them, is a severance of the social compact between sovereign and subject.

this is what locke says on the subject:

“for wherever violence is used and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law, the end whereof being to protect and redress the innocent by an unbiased application of it to all who are under it: wherever that is not bona fide done, war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases  --  an appeal to heaven.”

there is no doubt in this paragraph, that given the connivance of the sovereign in such aggression that “… war is made upon the sufferers …”, and being subject to such war, the sufferers have the right to assert war upon their transgressors and enemies.  there is a subtlety here, and of some dimension: it must be comprehended that locke not only contemplates that the sufferers make war upon their transgressors, but that also his thought seems a direct precursor of blackstone, that war may be legitimately waged against the sovereign who partakes in such perfidy.

what application does this have to us, those of us who live in a complicated society in the 21^st century, seemingly far removed from locke’s era?

if we as individuals are attacked by islamic jihad, for instance and our elected rulers are unavailing in protecting us from its ravages or its dangers, are we legitimately allowed under locke’s analysis to wage revolution against our sovereign or such elements of the sovereign who aid our enemy?  it would seem to me relatively evident that locke would find nothing wrong with such an assertion under his conceptualization of the nature of things.

if we as individuals are attacked by islamic jihad, for instance, and certain elements of our media or our intelligentsia or our entertainment elites give active aid to our enemies, or abet their efforts to conquer us, or further or encourage the aims of the islamic jihad by fund raising efforts or contribution of money, are we legitimately entitled under locke’s analysis to wage war for the preservation of our lives and our way of life and our heritage and our religious freedoms, under locke’s view of things?  it would seem to me relatively evident, again, that such would be the case under locke’s view of things.

the following passage makes clear what locke means by an “appeal to heaven,” and what he means precisely is trial by combat, g_d to declare the righteous victors in such conflict.  in short, he endorses the right of the subjects to revolt against a sovereign who by his connivance with an enemy wages war on his own people, as this passage makes absolutely clear:

21.  to avoid this state of war  --  wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide to the contenders -- is one great reason of men’s putting themselves into society and quitting the state of nature; for where there is an authority, a power on earth from which relief can be had by appeal, there the continuance of the state of war is excluded, and the controversy is decided by that power.  had there been any such court, any superior jurisdiction on earth, to determine the right between jephthah and the ammonites, they had never come to a state of war; but we see he was forced to appeal to heaven: “the lord the judge,” says he, “be judge this day between the children of israel and the children of ammon” (judges xi. 27.), and then prosecuting and relying on his appeal, he leads his army out to battle.  and, therefore, in such controversies where the question is put, “who shall be judge?” it cannot be meant, “who shall decide the controversy”; everyone knows what jephthah here tells us, that “the lord the judge” shall judge.  where there is no judge on earth, the appeal lies to god in heaven.  [e.g., trial by combat.]  that question then cannot mean: who shall judge whether another hath put himself in a state of war with me, and whether I may, as jephthath did, appeal to heaven in it?  of that I myself can only be judge in my own conscience, as I will answer it at the great day to the supreme judge of all men.

is there an end to all of this, in locke’s conceptualization of the potential strife between a man and his neighbors and his sovereign?  well, the answer is yes, and locke clearly conceives political resolution of these matters, under the correct circumstances.  says locke of negotiating peace:

“….force without right upon a man’s person makes a state of war both where there is, and is not, a common judge.

20.  but when the actual force is over, the state of war ceases between those that are in society , and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury and to prevent future harm.  but where no such appeal is, as in the state of nature, for want of positive laws and judges with authority to appeal to, the state of war once begun continues with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future:  nay, where an appeal to the law and constituted judges lies open, ….”

it seems to me that while locke clearly contemplates the intervention of the sovereign operating on behalf of his subjects to secure such peace, he also contemplates the active intervention of the subject in negotiating the terms of his own peace with his aggressor.

i wish that john locke were read in israel.

i wish that israeli’s and israeli politicians were educated in the traditions of hobbes & locke & blackstone and the american federalist papers, instead of being educated in the continental socialist and marxist tripe that they are steeped in.  [g_d, that is a wonderful phrase, and being matured at a boil in a pot of tea is just what some of them need, maybe they would be more like churchill than quisling, more like washington than lenin.] 

i wish that the israeli public were also more educated in the anglo-saxon traditions, and that they thought more in terms of person’s asserting natural rights than in collectivist politics.

of all the people on earth ill served by knot headed politicians, politicians who are utterly failing to protect their birthrights and their heritage and who are giving away hard won security and strategic military advantages, hard won by the blood of illustrious heroes, … , of all the people of the world, the israeli citizenry would best be served by a conceptualization of natural right such as advanced by locke, and by a vision of the right of the individual to protect himself when the sovereign fails to, and by a vision of the right of a group of individuals to rise up in armed rebellion against incompetent boobs and conniving villains. 

i wish that the spirit of john locke were more vibrant on these shores.

do i have to rewrite the above paragraphs?

to make the obvious points?

in sum, it is my view that two of the pre-eminent theoreticians, john locke and william blackstone, assert the right of an individual to protect himself, acting as an individual and not as an agent of the magistrate, and to protect his fellows and society, when the institutions of the sovereign prove either unavailing or perhaps even hostile to his aims, from the depredations and aggressions of an enemy which has sworn to take his life, or who has acted in accord with such a declaration, and to protect himself from a government which is either indifferent to his fate or acts in connivance with his aggressors.

i do not speak in terms of “free speech” in this context.  i speak precisely of violence and a contest of arms, in locke’s terms, putting the matter to the “judge of judges”, in order to redress grievances and exercise the right of self defense which devolves from the state of nature which was the precursor of the formation of nation states.

to put the matter as simply and bluntly as possible, in my view, a person who would kill an islamic jihadist to protect himself, his family, his nation and his god from the aggression of the islamic jihad acts in the highest traditions of western political theory, and especially in the highest traditions of two of the seminal thinkers at the creation of western democracy, john locke and william blackstone.

i will next examine the federalist papers, authored by alexander hamilton, james madison and john jay to see if support for such propositions were put forth to the american people in the public discussions leading up to the ratification of the united states constitution and the formation of the political regime adopted by the people in 1789, and vital, vigorous and extent to this day.

and, since i am a lawyer, we will turn to legal authority, statutory and case law based, to see what support for my assertions lies there.

friend, if my brother is attacked, am i not attacked?

--john jay

---

[1] following is an excerpt from the declaration of independence, written by thomas jefferson.  If you do not recognize the influence of john locke and william blackstone in this text, you simply have not been paying attention.  jefferson wrote, giving immortality to these sentiments, as they are the organic text of our government, and these words are founded upon the notions of natural law as advanced by locke that we have been discussing:

when, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's god entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. that whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

as a lawyer and advocate i would not be embarrassed to argue that the declaration of independence, as an organic document of our government, establishes the social compact theory advanced by locke and blackstone as the organic and fundamental law of this country.  not embarrassed, in the slightest degree.

for my friends at passover

i feel comfortable and proud in my own skin, as a christian, that is to say, as a person born into a heritage comprised by judaism, an obscure jewish rabbi killed by romans, and a religion crafted from that clay by a committee of learned roman intellectuals and mystics such as aquinas, augustine, and the various monks and committees who did a little tweaking here, a little tweaking there, and swallowed pagans and zealots along the line.

they do not call it catholic for nothing, which means, of course, for lack of reason.  or, for lack of fact.

i believe in this civilization, this culmination of religious and secular law reflective of the push, tug, strife, warfare and slaughter, and the good and love, of entire epochs and of entire peoples.  this civilization hewn by the blood, sweat and tears of passionate men, warriors, who believed in an ideal of love and gentleness: i find it a reassuring irony that lots of heads were cracked to achieve these ideals.

somehow good has been accommodated and nurtured.

not the least of that good has been the writing of good and kind souls along the way.

for passover, to my jewish and christian, and yes, zorastin friends alike, i give you the work of one isaac bashevis singer, one of the greatest of these good, kind and humble souls who seek nothing more than the ennobling of man.

not conquest.  not domination.  not imposition.  just the ennoblement that only good, kind and pointed writing can achieve, which helps a person to become good through his own devices.  so that he may do good, and conform his soul by his own good works to the good that courses through the universe.

i will not say more.

i trust the words of isaac singer to convey their own meaning, by their own devices.

so, please, read isaac singer’s short story, and then read his lecture to the swedish academy upon his acceptance of the nobel prize.  they are eloquent testimony to the stature of man, and to the jewish faith.  which is, of course, part of me.

--john jay

nobel lecture, by isaac bashevis singer

nobel lecture, isaac bashevis singer, farrar straus giroux, 1978, pj5129.s49z93 (library)

the storyteller and poet of our time, as in any other time, must be an entertainer of the spirit in the full sense of the word, not just a preacher of social justice or political ideals.  there is no paradise for bored readers and no excuse for tedious literature that does not intrigue the reader, uplift his spirit, give him the joy and the escape that true art always grants.  nevertheless, it is also true that the serious writer of our time must be deeply concerned about the problems of his generation.  he cannot but see that the power of religion, especially belief in revelation, is weaker today than it was in any other epoch in human history.  more and more children grow up without faith in god, without belief in reward and punishment, in the immortality of the soul, and even in the validity of ethics.   the genuine writer cannot ignore the fact that the family is losing its spiritual foundation.  all the dismal prophecies of oswald spengler have become realities since the second world war.  no technological achievements can mitigate the disappointment of modern man, his loneliness, his feeling of inferiority, and his fear of war, revolution and terror.  not only has our generation lost faith in providence, but also in man himself, in his institutions, and often in those who are nearest to him.

in their despair a number of those who no long have confidence in the leadership of our society look up to the writer, the master of words.  they hope against hope that the man of talent and sensitivity can perhaps rescue civilization..  maybe there is a spark of the prophet in the artist after all.

as the son of a people who received the worst blows that human madness can inflict,  have many times resigned myself to never finding a true way out.  but a new hope always emerges, telling me that it is not yet too late for all of us to take stock and make a decision.  i was brought up to believe in free will.  although I came to doubt all revelation, i can never accept the idea that the universe is a physical or chemical accident, a result of blind evolution.  even though i learned to recognize the lies, the clichés, and the idolatries of the human mind, i still cling to some truths which I think all of us might accept someday. there must be a way for man to attain all possible pleasures, all the power and knowledge that nature can grant him, and still serve god --  a god who speaks in deeds, not in words, and whose vocabulary is the universe.

i am not ashamed to admit that t belong to those who fantasize that literature is capable of bringing new horizons and new perspectives --  philosophical, religious, aesthetical, and even social. in the history of old jewish literature there was never any basic difference between the poet and the prophet.  our ancient poetry often became law and a way of life.

some of my cronies in the cafeteria near the jewish dalily forward in new york call me a pessimist and a decadent, but there is always a background of faith behind resignation.  i found comfort  in such pessimists and decadents as baudelaire, velaine, edgar allan poe, and strindberg.  my interest in psychic research made me find solace in such mystics as your swedenborg and in our own rabbi nachman bratzlaver, as well as in a great poet of my time, my frined aaron zetlin, who died a few year ago and left a spiritual inheritance of high quality, most of it in Yiddish.
the pessimism of the creative person is not decadence, but a mighty passion for the redemption of man.  while the poet entertains he continues to search for eternal truths, for the essence of being.  in his own fashion he tries to solve the riddle time and change to find an answer to suffering, to reveal love in the very abyss of cruelty and injustice .  strange as these words may sound, I often play with the idea that when all the social theories collapse and wars and revolutions leave humanity in utter gloom, the poet—whom plato banned from his republic—may rise up to suave us all.

[mr. singer read the following paragraph in yiddish, at the start of the lecture.]

the high honor bestowed upon me by the swedish academy is also a recognition of the yidddish language—a language of exile, without a land, without frontiers, not supported by any government, a language which possesses no words for weapons, ammunition, military exercises, war tactics; a language that was despised by both gentiles and emancipate jews.  the truth is that what the great religions preached, the yiddish-speaking people of the ghettos practiced day in and day out.  they were the people of the book in the truest sense of the word.  they knew of no greater joy than the study of man and human relations, which they called torah, talmud, musar, kabbalah.  the ghetto was not only a place of refuge for a persecuted minority but a great experiment in peace, in self-discipline, and in humanism.  as such, a residue still exists and refuses to give up in spite of all the brutality that surrounds it.

i was brought up among those people.  my father’s home on drochmalna street in warsaw was a study house, a court of justice, a house of prayer, of storytelling, as well as a place for weddings and hasidic banquets.  as a child i had heard from my older brother and master, i.j. singer, who later wrote the brothers ashkenazi, all the arguments that the rationalists from spinoza to max naordau brought out against religion.  i have heard from my father and my mother all the answers that faith in god could offer to those who doubt and search for the truth.  in our home and in many other homes the eternal questions were  more actual that the latest news in the Yiddish newspaper.  in spite of all the disenchantments and all my skepticism, i believe the that nations can learn much from those jews, their way of thinking, their way of bringing up children, their finding happiness where others see nothing but misery and humiliation.

to me the yiddish language and the conduct of those who spoke  it are identical.  one can find in the yiddish tongue and in the yiddish style expressions of pious joy, lust for life, longing for the messiah, patience, and deep appreciation of human individuality.  there is a quiet humor in yiddish a gratitude for every day of life, every crumb of success, each encounter of love.  the yiddish mentality is not haughty.  it does not take victory for granted.  it does not demand and command but it muddles through, sneaks by, smuggles itself amid the power of destruction, knowing somewhere that god’s plan for creation is still at the very beginning.

there are some who call yiddish a dead language, but so was hebrew called for two thousand years. it has been revived in our time in a most remarkable, almost miraculous way.  armaic was certainly a dead language for centuries, but then it brought to light the zohar, a work of mysticism of sublime value.  it is a fact that the classics of yiddish literature are also the classics of the modern hebrew literature.  yiddish has not yet said its last word.  it contains treasures that have not be revealed to the eyes of the world.  it was the tongue of martyrs and saints, of dreamers and kabbalists.--  rich in humor and in memories that mankind may never forget.  in a figurative way, yiddish is the wise and humble language of us all, the idiom of frightened and hopeful humanity.

--isaac bashevis singer

a piece of advice ... isaac bashevis singer ... a short story

“the spinoza of market street,” isaac bashevis singer, the short story: a piece of advice, avon books, new york, new york, 1963, pp. 121-129. 

a piece of advice.

talk about a holy man!  our powers are not theirs; their ideas are not for us to understand.  but let me tell you what happened to my own father-in-law.

at the time, i was still a young man, a mere boy, and a follower of the rabbi of kuzmir – who was there more worthy?  my father –in-law lived in rachev, where i boarded with him.  he was a wealthy man and ran his house in a grand manner.  For instance, look at what happened at the blessing.  only after i had washed my hands and said the blessing, did my mother-in-law take the rolls from the oven.  so that they were still hot and fresh.  she timed it to the very second.  in my soup, she put hardboiled eggs.   i wasn’t accustomed to such luxuries.  in my own home the loaves of bread were baked two weeks in advance.  i used to rub garlic on a slice, and wash it down with cold well water.

but at my father-in-law’s everything was fancy --  brass door latches, copper pans.  You had to wipe your boots on a straw mat before crossing the threshold.  and the fuss that was made about brewing coffee with chicory!  my mother-in-law was descended from a family of misnagids --  the enemies of the hasids – and to misnagids the pleasures of this world mean something.

my father-in-law was an honest jew, a talmudic scholar; also a dealer in timber, and a mathematician of sorts.  he used to have his own hut in the forest; and took a gun and two dogs when he went there, because of robbers.  he knew logarithms; and by tapping the bark of a tree with his hammer, cold tell if the tree were as sound inside as out.  he knew how to play a game of chess with a gentile squire.  whenever he had a free moment, he read one of the holy books. he carried the “duty of the heart” about with him in his pocket.  he smoked a long pipe with a amber mouthpiece and a silver cover.  he kept his prayer shawl in a hide bag, and for his phylacteries he owned sliver cases.

he had two faults.  first of all, he was a fervent misnagid.  what a misngid --  he burned like fire!  he called the hasids “the heretics” and he was not ashamed to speak evil of the saintly baal shem himself.  the first time I heard him talk like that i shuddered.  i wanted to pack up and run away.  but the rabbi of kuzmir was against divorce.  you married your wife, not your father-in-law.  and he told me jethro, moses’ father-in-law, hadn’t been a hasid either.  i was amazed jethro later became a holy man.  but that’s putting the cart before the horse.

my father-in-law’s second fault was his uncontrollable anger.  He had been able to conquer all his other moral weaknesses, but not that one.  If a merchant did not repay a debt on time and to the penny, he called him a swindler and refused to have any further dealings with him.  if the town shoemaker made him a pair of boots, and they were a little too tight or too loose, he harangued him heartlessly.

everything had to be just so.  he had gotten it into his head that jewish homes had to be as clean as those of the christian squires, and he insisted that his wife let him inspect the pots and pans.  if there was a spot on them, he was furious.  there was a joke about him: that e he had discovered a hole in a potato grater!  his family loved him; the town respected him.  but how much bad temper can people take?  everybody became his enemy.  his business partners left him.  even my mother-in-law couldn’t stand it any more.

once i borrowed a pen from him.  i forgot to return it immediately, and when he wanted to write a letter to lublin, he began hunting.  remembering that I had it, i hastened to give it back.  he had fallen into such a rage that he struck me in the face.  well, if one’s own father does a thing like that, it’s his privilege.  but for a father-in-law to strike a son-in-law: it’s unheard of!  my mother-in-law became sick from what had happened; my wife wept bitterly.  i myself wasn’t that upset: what was the tragedy?  but i saw that my father-in-law was eating his heart out, regretting it.  so i went to him.  “father-in-law,” i said, “don’t take it to heart.  i forgive you.”

as a rule he spoke very little to me.  because if he was particular about everything, i was lax.  when i took off my coat, I never remembered where i had put it.  if i was given some coins, i promptly misplaced them.  and though rachev was a tiny village, when i went beyond the market place, i could no longer find my way back.  the houses were all alike, and i never looked at the women within.  when I got lost, i would open a cottage door and ask, “doesn’t my father-in-law live here?”  those inside would always begin to titter and laugh.   finally i took a vow never to walk anywhere except straight from my home to the study house and back again.  --  only later did it occur to me that near my father-in-laws’s house stood a landmark: a thick tree with deep roots, which must have been two hundred years old.

anyway, for one reason or another, my father-in-law and i were always quarreling, and he avoided me.  but after the incident of the pen, he talked to me.  “baruch, what shall i do?” he said.  “i’am a bad-tempered man.  i know the sin of anger is as evil as that of idolatry.  for years i’ve tried to control my temper, yet it only gets worse.  i’m sinking into hell.  in worldly matters too, it’s very bad.  my enemies want to destroy me.  i’m afraid i’ll end up without bread in the house.”

i answered: “father-in-law, come with me to rabbi chazkele of kuzmir.’

he turned pale.  “have you gone made?” he shouted.  “you know I don’t believe in wonder rabbis!”

i held my tongue.  first, because i didn’t want him to scold me as he always regretted it later.  and, second, i didn’t want him to go on slandering a holy man.

imagine then: after the evening prayer, he came over to me and said, “baruch, we’re going to kuzmir.”  i was stupefied.  but why go into that.  ….  he had decided to go, and we began to prepare for the journey immediately.  as it was winter, we had to hire a sleigh.  a deep snow had fallen and the road was far from safe; the forests were full of wolves; nor was there any lack of highwaymen.  but we had to go right away.  such was my father-in-law’s nature!  my mother –in-law thought – heaven forbid – that he had lost his mind.  he put on his fur coat, a pair of straw overshoes, and said the special prayer for a journey.  i found the whole thing a great adventure.  wasn’t i going to kuzmir and taking my father-in-law with me?  who could be happier than i?  yet i trembled with fear, for who knew what would happen there!

on the journey, my father-in-law didn’t utter a word.  it snowed the whole way.  the fields as we passed were full of swirling snowflakes.  philosophers say the shape of each flake is unique.  but snow is a subject in itself.  it comes from heaven and lets us experience the peace of the other world.  white is the color of mercy according to the cabala, while red signifies law. 

nowadays snow is a trifle: it falls for a day or two at most.  but in those days! often in snowed for a month without stopping!  huge snowdrifts piled up; houses were buried; and everyone had to dig their way out.  heaven and earth merged and became one.   why does the beard of an old man turn white?  such things are all related. --  at night, we heard the howling of beasts … or perhaps it was only the sound of the wind.

we arrived in kuzmir on a friday afternoon.  my father-in-law went to the rabbi’s study to greet him.  he was permitted to go in immediately.  since it was the middle of winter, few of the rabbi’s disciples had come.  i waited in the study house, my skin tingling.  my father-in-law was by nature such a bullheaded man.  he might very well talk back to rabbi chazkele.  it was three-quarters of an hour before he came out, his face white as chalk above his long beard, he eyes burning like coals beneath his bushy eyebrows.

“if it wasn’t the eve of the sabbath, i would go home immediately,” he said.

“what happened, father-in-law ?” i asked.

“your wonder rabbi is a fool!”  an ignoramus!  If he weren’t an old man, I would tear off his sidelocks.”

taste of gall was strong in my mouth; and I regretted the whole affair  to talk this way about rabbi chazkele of kuzmir!

“father-in-law,” i asked, “what did the rabbi say to you?”

“he told me to become a flatterer,” my father-in-law answered.  “for eight days I must flatter everyone i meet, even the worst scoundrel.  if your rabbi had an ounce of sense he would know that i hate flattery like the plague.  it makes me sick even to come in contact with it.  for me, a flatterer is worse than a murderer.”

“well, father-in-law,” said i, “do you think the rabbi doesn’t know that flattery is bad believe me, he knows what he’s doing.”

“what does he know?  one sin cannot wipe out another.  he knows nothing about the law.”

i went away completely crushed.  i had not yet been to the ritual bath, so i went there.  i have forgotten to mention that my father-in-law never went to the ritual bath.  i don’t know why.  i guess it’s the way of the way of the misnagids.  he was haughty perhaps.  it was beneath his dignity to undress among the other men.  when i came out of the ritual bath, the sabbth candles were already lit.  rabbi chazkele used to bless the sabbath candles long before dark – he himself, not his wife.  his wife lit her own candles.  but that is another matter. …

i entered the study house.  the rabbi was standing in his white gabardine and his white hat.  his face shone like the sun.  one could see clearly he was in a higher world.  when he sang out, “give thanks unto the lord for he is good for his mercy endureth forever,” the walls shook.  while praying the rabbi clapped his hands and stamped his feet.

only a few disciples were present.  but they were the elite, men of holy deeds, every one of them a person friend of the rabbi.  as they chanted, i felt their prayers reaching the heavens.  never, not even at kuzmir, had i experienced such a beginning of the holy sabbath.  the rejoicing was so real that you could touch it.  all their eyes were shining.  my mind became so light that i could barely keep my feet on the ground.  i happened to be praying near a window.  snow had covered everything --  no road, no path, no cottages.  candles seemed to burn in the snow.  heaven and earth were one.  the moon and the stars touched the roofs.  those who were not in kuzmir that friday evening will never know what this world can be. …  i’m not speaking now of the world to come. …

i glanced at my father –in-law.  he stood in a corner, his head bent.  as a rule, his sternness was visible in his face, but now he looked humble, quite a different person.  after the prayers we went to eat at the rabbi’s table.

the rabbi had put on a white robe of silk, with silver fasteners, and embroidered with flowers.  as his custom was before the sabbath meal, he now sat alone in his library, reciting chapters of the mishnah and of the zohar.  the older disciples sat down on benches; the younger men,  among them, stood about.

when the rabbi came out of his study, he intoned the verses, “peace be with you,” and “a woman of worth, who can find?”  then he blessed the wine and said a prayer over the white bread of the sabbath.  he ate a morsel no bigger than an olive.  immediately thereafter, he began the sabbath table chants.  but this wasn’t mere chanting!  his body swayed; he cooed like a dove; it sounded like the singing of angels.  his communion with g_d was so complete that his soul almost left his body.  everybody could see that he holy man was not here but high up in heaven.

who knows what heights he reached?  how can one describe it?  as the talmud says, “he who has not seen joy like this has never seen joy at all.”  he was at the same time at the court in kuzmir, and high above in g_d’s temples, in the nest of the bird, at the throne of glory.  such rapture is impossible to imagine.  i forgot about my father-in-law and even about myself.  i was no longer baruch from rachev – but bodiless, sheer nothing.  it was one o’clock in the morning before we left the rabbi’s table.  such a sabbath service never happened before and never will again --  maybe, when the messiah comes.

but i am forgetting the main thing.  the rabbi commented on the law.  and what he said was connected with what he had told my father-in-law at their meeting.  “what should a jew do if his is not a pious man?”  the rabbi asked.  and answered: “let him play the pious man.  the almighty does not require good intentions.  the deed is what counts.  it is what you do that matters.  are you angry perhaps?  go ahead and be angry, but speak gentle words and be friendly at the same time.  are you afraid of being a dissembler?  so what if you pretend to be something you aren’t?  for whose sake are you lying?  for your father in heaven.  his holy name, blessed be he, knows the intention and the intention behind the intention, and it is this that is the main thing.”

how can one convey the rabbi’s lesson?  pearls fell from his mouth and each word burned like fire and penetrated the heart.  it wasn’t so much the words themselves, but his gestures and his tone.  the evil spirit, the rabbi said, cannot be conquered by sheer will. it is known that the evil one had no body, and works mainly through the power of speech.  do not lend him a mouth --  that is the way to conquer him.  take, for example, balaam, the son of beor.  He wanted to curse the children of israel but forced himself to bless them instead, and because of this, his name is mentioned in the bible.  when one doesn’t lend the evil one a tongue, the must remain mute.

why should I ramble on?  my father-in-law attended all three sabbath meals.  and when, on the sabbath night, he went to the rabbi to take leave of him, he stayed in his study for a whole hour.

on the way home, i said, “well, father-in-law?” and he answered: “your rabbi is a great man.”

the road back to rachev was full of dangers.  though it was still midwinter, the ice on the vistula had cracked – ice-blocks were floating downstream the way they do at passover time.  in the midst of all the cold, thunder and lightning struck.  No doubt about it, only satan could be responsible for this!  we were forced to put up at an inn until tuesday --  and there were many misnagids staying there.  no one could travel further.  a real blizzard was raging outside.  the howling in the chimney made you shiver.

misnagids are always the same.  these were no exception.  they began to heap ridicule upon hasids --  but my father-in-law maintained silence.  they tried to provoke him but he refused to join in.  they took him to task: “what about this one?  what about that one?”  he put them off good-naturedly with many tricks.  “what change has come over your?” they asked.  if they had known that he was coming from rabbi chazkele, they would have devoured him.

what more can i tell you?  my father-in-law did what the rabbi had prescribed.  he stopped snapping at people.  his eyes glowed with anger but his speech was soft.  and if at times he lifted his pipe about to strike someone, he always stopped himself and spoke with humility.  it wasn’t’ long before the people of rachev realized that my father-in-law was a changed man  he made peace with his enemies.  he would stop any little brat in the street and give him a pinch on the cheek.  and if the water carrier splashed water entering our house, though i knew this just about drove my father-in-law crazy, he never showed it.  “how are you, reb yontle?” he would say.  “are you cold,eh?”  one could feel that he did this only with great effort.  that is what made it noble.

in time, his anger disappeared completely.  he began to visit rabbi chazkele three times a year.  he became a kindly man, so good-natured it was unbelievable.  but that is what a habit is like --  if you break it, it becomes the opposite.  one can turn the worst sin into a good deed.  the main thing is to act, not to ponder.  he even began to visit the ritual bath.  and when he grew old, he acquired disciples of his own.  this was after the death of rabbi chazkele.  my father –in-law always used to say, “if you can’t be a good jew, act the good jew, because if you act something, you are it. otherwise why does any man try to act at all?  take, for example, the drunk in the tavern.  why doesn’t he try to act differently?

the rabbi once said: “why is ‘thou shalt not covet’ the very last of the ten commandments?  Because one must first avoid doing the wrong things.  then, later on, one will not desire to do them.  if one stopped and waited until all the passions ceased, one could never attain holiness.”

and so it is with all things.  if you are not happy, act the happy man.  happiness will come later.  so also with faith.  if you are in despair, act as though you believed.  faith will come afterwards.

--isaac hashevis singer

--translated from the yiddish by martha glicklich and joel blocker

a personal right of self defense to terror under natural law

this essay asserts the right of an individual to defend himself personally against islamic terror without government assistance or approval, within the context of the seminal political thought of john locke, the great english proponent of the rights of natural law inhering in all men.--

william blackstone wrote the commentaries on the laws of england between 1765 and 1769, some 75 years after john locke advanced his theories on natural law and the “state of nature” as precursors to government. in short, locke advanced the theory of consensual government, men entering into a mutually beneficial compact to secure, advance and protect their wider rights and privileges as enjoyed in a state of nature, to lend credence to an asserted actual creation of just such a system, the constitutional monarchy, which his essays helped legitimize. blackstone borrowed heavily from his predecessor’s theories on natural law in the commentaries, which is a largely favorable review of the governmental system locke helped establish.

it goes almost without saying that the two great men of english law and politics were in agreement on many things.

in the particular edition of the commentaries at my disposal, published in 1979 by the university of chicago press, the editor of the 4 volume set takes a little backhand swipe at blackstone’s “devotion” to the notion of natural law, or the law of nature, by observing:

“the substance of book I of the commentaries begins with section 2, ‘on the nature of laws in general,’ a brief and unconvincing essay on the natural law background of the english legal system.  this is an obligatory eighteenth-century exercise, in which blackstone accords to natural and revealed law about the same importance that newton accorded to god in the operation of the physical universe.”  stanley n. katz, editor, preface, page vi, commentaries on the laws of england, vol. 1, sir william blackstone.

the very overt suggestion is that blackstone and locke really did not take very seriously their notions of natural law, and the concomitant doctrine that persons retained those rights not ceded to the sovereign by the compact creating the sovereign authority.  any suggestion that blackstone and locke viewed their ideas as just makeweight to support monarchy, would call into serious question any argument that natural law remains vigorous, viable and capable of expression by citizens within the context of our traditions of political thought.

i think mr. katz mistaken.

it seems to me a fuller understanding of locke’s position is found in another introduction, written by professor of political science thomas i. cook,  the two treatises of government, by john locke, hafner publishing company, new york, 1956.

professor cook has this to say:

“for locke, therefore, the whole purpose of political society, and the basis of the social contract by which it is created, is to overcome what he himself called the ‘inconvenience of the state of nature.’  this inconvenience consists solely and exclusively in the lack of an authoritative judge between and above parties to disputes.  …  the state of nature, in fact, is in constant danger of degenerating into that state of conflict which was hobbes’ state of nature.  they need, then, as social beings who would deplore such an event, to fine some means of avoiding it, and they see that this can be done only by setting up of a common judge.  …  in other words, the state is an organization voluntarily created by the consent of natural men who abandon and hand over their right to their own interpretation and enforcement of their own natural rights.  for locke the state is thus a judicial body, interpreting the law of nature for individuals who have not surrendered one iota of their natural rights, but who have by their own consent created that state simply and solely that it may, without favor to any man or group, and without bias against any man or group, interpret objectively those rights and use the collective authority to enforce their observance.  the implications of this position are vital.  …  secondly, since the state is to protect rights pre-existing, and not to create rights, the implication is a limited state, one which will not impose obligations arising from social growth without regard to those supposedly fundamental properties of individuals.  …  rights not merely set limits on the activity of government, but constitute the very purpose of its whole position and action.”  thomas i. cook, editor, introduction, pages xvii-xviii, two treatises of government, john locke.

the english whig state so intimately identified with his teaching held precisely this as its ideal.”  thomas i. cook, editor, introduction, page xviii, two treatises of government, john locke.

it is not accidental, therefore, that blackstone echoed many of locke’s notions as blackstone was an advocate of constitutional monarchy as well, and equally an advocate of law as advancing and protecting the natural rights of man in society, and living under government.  blackstone’s advocacy of natural law, therefore, is not offhand, nor cursory, nor an obligatory gesture toward locke, but a fresh and deeply felt adherence to the view that those rights as men assert in society as those rights which they asserted prior to the entry into the social compact creating government. 

with those observations in mind.—

as noted above by professor cook, the chief problem in the state of nature is the lack of a magistrate to negotiate or impose settlement of disputes between individuals.  professor cook reads his text pretty well, for locke writes that in an association of people with no appointed or official magistrate, the execution of the law or social norms is put into the hands of each individual:

says locke:

and that all men may be restrained from invading others’ rights and from doing hurt to one another, and the law of nature be observed which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man’s hands, whereby everyone has a right to punish the transgressors of that law to such a degree as may hinder its violation; for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature has a power to execute that law and thereby preserve the innocent and restrain offenders.  and if anyone in the state of nature may punish another for any evil he has done, every one may do so; for in that state of perfect equality where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, everyone must needs have a right to do.  john locke, the second treatise of civil government, hafner pub. co., 1956, new york, page 124.

at this point, it is probably appropriate to look directly at the issue of what precisely locke is talking about, when he speaks of the law of nature.  firstly, it is obvious that he is not speaking of an aggregation of humans in which chaos reigns, or in which pure physical force rules the day, or in which no standards or behavior or morality exist.  indeed, he is talking of precisely the opposite, of a condition in which recognized rules of conduct exist, and in which departures from the same can be clearly delineated and recognized.  he is talking, after all, about a situation in which laws and standards exist and are recognized and are in the main observed.

what is lacking from this construct is government.  in plain and simple terms, what is lacking from this situation which he calls the state of nature is authority above the person, of authority which may be imposed upon the person by a means other than the brute force of his neighbor.  yet, clearly locke does not hold to the position that only government can induce or impose harmony, for his view of the matter presupposes a harmony which is transgressed from time to time by persons who violate recognized standards.

some are by intellectual inclination inclined to ridicule this sort of thinking.

i am not.

in my younger days, i spend 7 months aboard crab processors and fishers in the bering sea, and i am telling you that there is very little law west of the pecos in the bering sea on crab boats and crab processors.  i have also spent 25 years in the practice of law, mostly as a defense lawyer and as a prosecutor, and i can also tell you that in almost any county, one may go where there is not recognized or enforced legal authority, of a type imposed by a legitimate and recognized source.

yet standards of behavior exist, are recognized and are enforced.

there may not be honor amongst thieves, but there are rules.

observes locke:

“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 possession and persons as they think fit, within the ound of the law of nature, without asking leave or depending upon the will of any other man.  …  page 122.

“but though this be a state of liberty, yet it is not a state of licence; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it.  the state of nature has a law of nature to govern it which obliges every one; and reason, which is that law, teaches 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: …”  page 123

so, i, for one, do not quibble with locke with regard to his delineation or description of the natural law or laws in the state of nature, and i regard it as a perfectly serviceable way to view associations of person not subject to governmental authority, in theory and in fact.

nor do i take exception to or find fault with his observation that in such situations each separate person is a magistrate who enforces the rules on his own nickel, and on his own clock.

and, this leads us to locke’s very trenchant and fundamentally correct view of what government, or, as he puts it, political power is.  locke defines government as follows, in a very functional fashion:

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 defense of the commonwealth from foreign injury, and all this only for the public good.”  page 122.

a lot of discussion about laws of nature and natural law seems a bit removed from the reality of things, but any discussion about homicide and rape and self defense, and we begin to cut pretty close to the bone about what locke is talking about when he speaks of natural law.  we all think it pretty elemental that we have a right to preserve ourselves, above all else, and that such right does not depend upon or is not given to us by government, but precedes government.  this is actually a crux of theories on “natural law.”  and, i might add as a precursor to where i am going in all of this, when the attack is upon the very fabric of our community, discussion of the law of nature takes on a more pressing exigency.

in chapter the 14^th, “of homicide”, commentaries on the laws of england, blackstone talks about the nature of homicide, and homicides which are considered legally excused for one reason or another.  it may be noted that to a lawyer’s ear, the term homicide is a neutral term, simply the killing of a human being by another human being, which may or may not be good or bad or legal or illegal until the attendant circumstances are fleshed out.  it is, a word, however, that always gets attention.

blackstone touches upon self defense a bit in a passage dealing with whether a homicide may be deemed justifiable under the law, and hence, of no legal consequence to the slayer.  in discussing whether it is justifiable to kill in order to prevent the commission of a serious crime, blackstone says:

in the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature [footnote r, puff. L. of n. l.2, c.5]; and also by the law of england, as it stood so early as the time of bracton, and as it is since declared by statute 24 hen.viii. c.5.  if any person attempts a robbery or murder of another, or attempts to break open a house in the night time, (which extends also to an attempt to burn it,) and shall be killed is such attempt, the slayer shall be acquitted and discharged.   ….

but we must not carry this doctrine to the same visionary length that mr. locke does: who holds [footnote c, ess. on gov. p. 2 c. 3], “that all manner of force without right upon a man’s person, puts him in a state of war with the aggressor; and , of consequence, that, being in such state of war, he may lawfully kill him that puts him under this unnatural restraint.’  however just this conclusions may be in a state of uncivilized nature, yet he law of england, like that of every other well-regulated community, is too tender of the public peace, too careful of the lives of the subjects, to adopt so contentious system; nor will suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.

thus, blackstone who would argue that in a society governed by law a person has not the right to kill to prevent crime, except he would admit that right to exist outside of the authority of the magistrate in those instances when the penalty for the crime under the law of government is death, the same as in the state of nature.

we will examine locke’s contention and the quoted passage as some length in just a bit.  but, you, gentle reader, should not understand the above passage to be any general refutation of locke’s theories or the quoted passage, because blackstone also deal at some length with the doctrine of self defense, much more akin to locke’s assertions, and recognized to this day under our law and most of the laws on earth, as applicable to situations in which it is deemed perfectly reasonable for the individual to act as judge, jury and executioner.

for when it comes to defending one’s own life, of preserving it under exigency, then to act independently of society, government, law enforcement and even civilized behavior is deemed not only legitimate