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 14th, “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, but laudatory, assuming one to have acted without culpability as well. it is odd, that even in this super civilized society, the killing of another often in very violent and vicious ways can be a thing of high praise, if the person killed is the right person.
this is as close to locke's state of nature as most moderns get, except of course, in formulating our response to the terror waged upon the west. this stretches our conception of when we may act to preserve ourselves, and i will ultimately argue that it stretches the fabric of our law and ethics and morality all the way back to locke’s doctrines.
but, back to blackstone, both because i enjoy it so much, and because, though the writing is nearly 250 years old, to a lawyer’s ears it is as fresh as the first year of law school. things haven’t changed much, except that few contemporary law professors are as eloquent or reasoned as was sir william blackstone.
so, at first blush, moderns take the view that “taking the law into your own hands” is wrong. but, given appropriate consideration of the appropriate situation it does not seem such an odd thing, even to the point of killing another human being.
this discussion, quite frankly, is to bring you to the mindset of understanding that in some situations there simply is neither time nor opportunity to resort to the magistrate, so that one must act to preserve one’s self, just precisely as though one were in a state of nature, to exert one’s right under natural law. it is not a silly concept, natural law, at 3.00 in the morning when approached by a knife wielding assailant in your own bedroom: society, and the magistrate, will avail you little in those circumstances.
he discusses self defense as follows:
homicide is self-defense, or se defendendo, upon a sudden affray, is also excusable rather than justifiable, by the english law. this species of self-defence must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. but the self-defence, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assaults him. and this is what he law expresses by the word chance-medley, or (as some rather chuse to write it) chaud-medley, ; the former of which in its’ etymology signifies a casual affray, the latter an affray in the heat of blood or passion: both of them of pretty much the same import; but the former is in common speech too often erroneously applied to any manner of homicide by misadventure; whereas it appears by the statute 24 hen.viii. c. f. and our antient books, that is properly applied to such killing, as happens in self-defence upon a sudden reencounter. this right of natural defence does not imply a right of attacking: for, instead of attacking one another for injuries past or impending, men need only have recourse to the proper tribunals of justice. they cannot therefore legally exercise this right of preventive defence, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting tor the assistance of the law. wherefore, to excuse homicide by the plea of self-defence, it must appear that the slayer had no other possible means of escaping from his assailant.
in some cases this species of homicide (upon chance-medley in self-defence) differs but little from manslaughter, which also happens frequently upon chance-medley in the proper legal sense of the word. but the true criterion between them seems to be this: when both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of manslaughter; but if the slayer hath not begun to fight, or (having begun) endeavors to decline any farther struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his on destruction, this is homicide excusable by self-defence. for which reason the law requires, that the person, who kills another in his own defence, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that, not fictitiously, or in order to watch his opportunity, but from a real tenderness of shedding his brothers blood. and though it may be cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow subjects the law countenances no such point of honor: because the king and his courts are the vindices injuriarum, and will give to the party wronged all the satisfaction he deserves. in this the civil law also agrees with ours, or perhaps goes rather farther; “qui cum aliter tueri fe non possunt, damni supam dederin, innoxii sunt” the party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him: for it may be so fierce as not to allow him to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantly. and it is the doctrine of universal justice, [footnote s, puff. b .2. c. 5. Sec. 13.] ………………….
there is one species of homicide fe defendendo, where the party slain is equally innocent as he who occasions his death: and yet this homicide is also excusable from the great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish. as, among others, in that case mentioned by lord bacon, where two persons, being shipwrecked, and getting on the same plank, but finding it not able to save them both, one of them thrusts the other from it, whereby he is drowned. he who thus preserves his own life at the expense of another man’s, is excusable though unavoidable necessity, and the principle of self-defence; since their both remaining on the same weak plank is a mutual, though innocent, attempt upon, and an endangering of, each other’s life. page 186.
it should be understood that while blackstone in all probability was not in the least antagonistic to locke’s explanation, adverted to above and set forth more fully below, that a person existing in the state of nature had the right to punish his transgressors on his own initiative, lacking the protection of any magistrate of other community or societal force to come to his aid, blackstone wrote from the intellectual position of one who considered himself a member of a society in which people had signed a compact designating the magistrate as physical protector, and from the historical position and analytical position as a citizen of a society comprised of laws and in which conflict was resolved by a recourse to law.
in short, blackstone conceived himself as a person who lived under the terms of a social compact, a government and constitution, which had moved beyond the state of nature. as blackstone puts in so deliciously in the passage from the commentaries set forth above, the law of england is “to careful of the lives of its citizens” to allow them to prevent crime amongst themselves by the use of the mechanism of the death of their fellow citizens. in short, the right of the person in a state of nature as described by locke to kill his aggressors is abridged in the england that has become blackstone’s england through the compact and the administrations of english law, … , except, in those situations in which society’s punishment of the transgressor is death. then, says blackstone, the individual retains the right to be his own magistrate which he has ceded to government when he enters the social compact. blackstone wrote, as noted above:
nor will [the law of england] suffer with impunity any crime to be prevented by death, unless the same, if committed, would also be punished by death.
as noted by professor cook in his excellent discussion above, locke and surely blackstone as well were of the opinion that those rights and privileges held by the individual in the state of nature not ceded to the sovereign or society in the social compact entered into the state of government, are retained by the individual. in this regard, please see amendment the tenth to the united states constitution, e.g., the bill of rights, and read it again with a fuller understanding of what its strange language means. in my opinion, it means precisely what professor cook has discussed about locke’s political theory.
those who work the criminal justice system for any length of time begin to notice prisoners called “institution men,” and indeed, they refer to themselves as precisely that, i.e., it is not a prejudicial descriptor. as a young lawyer i represented a very young, very slight, very shy and polite, and very gay young hispanic man who had been arrested and charged with armed robbery just 3 days after his release from the washington state penitentiary. the whole thing seemed odd to me as i discussed it with him, and in a fit of exasperation i exclaimed, shit, if i didn’t know better i would think you did this on purpose just to get sent back to prison: he had displayed a weapon, then gave it over to the store clerk and waited in the store for the police to arrive. precisely, he said. why, i inquired. in the joint, he said, i am a man of substance, liked and respected by all the gangs including the bikers, and the prison administrators, and they use me and i volunteer to mediate prison disputes, between the gangs and the inmates and the administrators. i am gay, of a certain persuasion you do not need to understand precisely, but it assures that i have a steady supply of sex and romance, and i am not beaten for it. i am fed. i am not afraid in prison, i feel comfortable there, and i do not experience the anxiety in prison that i do on the outs. i am secure in prison, and i always will be. i play by the rules. i am an “institution man.” just cut me a deal and get me back into prison as soon as you can, i want out of this damned jail, these people do not know how to behave and it is very dangerous in here for everyone, and for me. so please, just hurry and get me back home.
he was, indeed, an “institution man.”
as surely as any individual that john locke might ever had conceived, he had signed a compact with his fellow prison inmates and the governing institution to abide by a certain set of rules, in exchange for security and protection and care, and just as surely, he had sworn out his allegiance and fealty to that system.
so are we all “institution” men and women.
we accept our protections and swear our fealties in the same way the fish does to the waters he swims in, and, just as the fish, we do not even notice the forces that hold us in suspension, so used to them are we. we feel secure in them. it is the deal we have cut.
john locke recognized this to be the result of the social compact.
yet he insisted on describing the preceding condition in which a man might find himself in a state of nature, and how such a person would be tasked with asserting his position in such a system, how he might have to act to protect himself, and how he would have the power of the magistrate to effect his protection. of this condition, under the rule of natural law, as distinctly contrasted to mr. blackstone’s english citizen under the rule of english law who had recourse to the magistrate (the english sovereign) to redress his grievances, john locke had written:
"11. from these two distinct rights -- the one of punishing the crime for restraint and preventing the like offence, which right of punishing is in everybody; the other of taking reparation, which belongs only to the injured party --comes it to pass that the magistrate, who by being magistrate hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received. that he who has suffered the damage has a right to demand in his own name, and he alone can remit; the damnified person has this power of appropriating to himself the goods or service of the offender by right of self-preservation, as every man has a power to punish the crime to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end; 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. and upon this is grounded that great law of nature, 'whoso sheddeth man's blood, by man shall his blood be shed.' and cain was so fully convinced that every one had a right to destroy such a criminal that, after the murder of his brother, he cries out, 'every one that findeth me, shall slay me;' so plain was it writ in the hearts of mankind.
we are all “institution men,” and the matrix we swim in is the modern nation state, and so immersed in this environment are we, that we do not even notice it. and, it is very hard to conceptualize any other existence: we are in the constant accompaniment of uniformed police officers, fireman, and persons of all ilk and stripes who are regimented to the running of this variegated and complicated entity, this modern state.
or, is it so hard to visualize the state of nature posited by locke in the above passage, to conceptualize a place where the ties that bind us to the state do not exist, do not pull on us, do not demand our obedience and our loyalty, or constant observance of the rules.
i will be so bold as to suggest that in fact, we live great portions of our lives in precisely the state of nature described by locke. this is revealed if we but give a moment’s reflection to it, and that by doing so, this should help us consider additional situations in which the situation locke describes in the above passage, e.g., situations might very well exist in which we should make significant decisions absent the ever present “magistrates” of the modern nation state, and in which we should be prepared to act on our own behalf.
consider valentine’s day.
consider those actions that we take which culminate in the birth and rearing of a child. in the courtship leading up to the union of two people who produce the child, and in the sexual and familial behavior of the persons who produce the child. yes, this area is riddled with legislation and law prescribing this or that normative behavior, and establishing and regulating child rearing standards, and divorce court, and all that.
but, for the most part, this is an enormous part of our lives, romance, sex, and family and the attendant rules and ethics and customs, in which the rules of the game are not established by government, and in spite of the “best efforts” of well meaning or not so well meaning people to insinuate themselves into it, people just do “as comes naturally.”
indeed, that this area is still so removed from the ability of government and other “buttinskies” to radically alter rules and mores that have been determined literally by centuries of social and biological history, and that this remains such an enormous and important part of our lives, is the very reason that so many governmental types want to further insinuate into it.
i am in the library of a college campus which is governed by a code of sexual conduct. each evening i witness courtship rituals as old as time, and in complete defiance of the “rules” set forth by the institution.
this aspect of our lives, if not totally, is very largely lived in a state of nature, not so different from a time in which government was not conceived.
it really should not be so hard to conceive of situations, removed from the dominance of the modern state, in which individuals can and have to assert and exercise those rights and powers described by locke in the above passage.
why is this so hard to conceptualize?
we tend think in terms of aggregates, of movements of social breadth, of the campaigns of great armies, or the convulsions of great nations. we think of authority in terms of the uniformed officer, or the uniformed soldier, or the judge who sits before us in ceremonial black robe with bailiff and clerk to do his bidding, expectantly at his side.
we think in terms of cataclysmic events, such as the normandy invasion or the battle of the bulge, or great cooperative efforts such as the manhattan project and the cooperative efforts of the scientists who conceived, designed and built the bomb.
yet each of these things was performed by individuals, and every soldier who stormed the beaches at normandy did so after making the momentous decision to lift his rifle as he was taught, and to go out and do a job that he had committed to. think of riding into the beach in one of those landing craft, no mean feat in the stormy surf of that day, and listening to the ping of rifle and machine gun bullets off the front of the landing craft door, and witnessing the little geysers of water rising from the surface of the ocean as enemy fire struck all around. think of seeing that door fall, that great bulwark of your safety and life dropping, and knowing that you stand naked before death, a quite likely death, one that feels actual in your mouth, and stepping off of that craft into the surf.
each man as an individual made that decision, each man took those steps as individuals, and each who died, died alone.
likewise, the power of the magistrate derives from the aggregate effect of each in society to support a system of law embodied by and administrated through the magistrate. the magistrate is powerless without his sheriff to exercise his writes, without the gaoler to bring the prisoner to the docket before him, without the adherence of the individual jurors who sit in judgment of the accused to do their jobs, and to accept the responsibility handed to them to make decisions of life or death. and finally, and this is oddest of all, the magistrate is powerless without the basic acquiescence of the accused to meaningfully participate in the process, to stand in the docket and to accept the process and its decisions, and willfully accept them.
it is little remembered that the atomic bomb was exploded upon the japanese homeland during wwii, after germany had been defeated and surrendered, and sue for peace upon the terms of unconditional surrender. given that situation a number of the physicists at work on the bomb petitioned robert oppenheimer to stop further work on the bomb and also to debate the morality of dropping it upon the japanese. oppenheimer met with his physicists, and pleaded with them to continue with their work and to press forward, to end the war against the japanese with as much dispatch as possible, to save lives by the taking of lives. the physicists bound themselves by the individual decisions reached there to continue the effort to construct the bombs.
these were momentous decisions by individuals, many of whom were tortured by the responsibility of making such decisions when dropping the bomb no longer seemed crucial in defeating nazi germany and imperial japan.
so, it is not farfetched to think of the individual acting in his own behalf to punish and perhaps kill his aggressors in the state of nature, because that is precisely the same individual who performs the deed under the law, an individual who believes in his role in the scheme of things.
the army is, in fact, an army of one.
locke is simply arguing that in some circumstances, the individual is a judge, jury and executioner of one, and that in fact under some circumstances, each of us retains that right and power, under natural law not given up to the magistrate.
i have been a lawyer for over 25 years, serving mostly in the criminal courts as defender and prosecutor alike. in that time, i came across fewer than 4 or 5 people who were accused of crime who did not accept the basic legitimacy of the process in which they were involved.
think about that for a while.
after being involved in the prosecution and defense of literally thousands of people, perhaps several thousand of them, fewer than the number of my fingers and thumbs have ever questioned the right of society to hold them accountable for their conduct, or the right of others to sit in judgment of the same.
this is astounding affirmation of locke’s and blackstones views of the voluntary and consensual nature of the entry into the social compact, and the voluntary adherence of people brought to task by those administering that compact, when, in my view and opinion, they hold to the belief that the whole system is being administered with basic fairness.
this is not a romanticized view of things. i have represented some pretty hard cookies. it is just hard factual assessment.
this is a ringing endorsement for the utility in a factual, historical and psychological manner of locke’s and blackstone’s vision, for the wisdom of the individual ceding his natural right to the magistrate in order to secure security, predictability and order to his life, and for adhering to that social compact not to take the execution of judgment and punishment into his own hands when wronged.
the islamic terror is not such a ringing endorsement of the values we in america have voluntarily agreed to hold up and support by our mutual efforts.
and, it points to conceptual limitations in limiting the ability of a person to act in his own behalf without aid of the magistrate, especially the magistrate who is unwilling or unable to see.
locke clearly and correctly postulates that before man ceded his rights held in nature to the sovereign in return for the sovereign's protection and administration of the law that each man held the power of a sovereign to protect the community from those who would murder. this is only logical, in that in the theory advanced by locke, the sovereign holds no more power than is granted to him by his subjects in the compact creating government and succeeding to the state of nature.
each person in western society, upon whom jihad has been declared and is being waged, has the right inhering in him to defend himself and his fellows from the war declared upon him, and that he holds this right as a residuum of power, to use blackstone's phrase, from his rights held precedent to the creation of government. it seems to me that when the sovereign fails to protect a citizen or citizens, that it has then breached the contract coeval with the creation of government, and that each of us may assert those rights held in nature, and that each of us may protect ourselves and our brethren against those who have declared war and are pursuing war against us.
in later posts i will argue that if and when a person kills a person demonstrably linked to the prosecution of the jihad against america, that this is justifiable homicide and/or self defense and defense of others under the common law, and under the political theory upon which this society and our common law is based.
the forbearance of each person to exercise direct retribution and revenge and punishment even unto death as postulated by locke in the state of nature as against the other who might transgress upon him, finds its premise in the belief of each that even his transgressor has signed into the compact forming limited government, e.g., that even the transgressor believes in the authority or majesty or the legitimacy of the magistrate to levy judgment and penalty against him, and in the transgressor’s decision to submit to this.
the terrorist and terrorism destroy this assumption: this is the first thing they annihilate. the terrorist and terrorism, indeed, repudiate the even the idea of the entry into such a compact, attempt to interrupt and cripple the implementation of the systems of law and procedure which are the structure of the compact, and act to bring death and destruction unto those who people and populate the system, and those who are its magistrates. they deny the efficacy and existence of the compact, and seek to destroy its physical manifestations, and seek to destroy the intellectual and emotional and psychological adherence to it on the part of its members.
put simply, the jihadi terrorist seeks to destroy the very fabric of the compact, seeks to undermine the basic assumptions which underlie and support it.
put even simpler, the terrorist and terrorism lives outside the compact.
they are not deserving of the protection of the bargains and agreements between the members of the compact who adhere to its terms.
in the simplest terms possible, the jihadi terrorist lives in a state of nature as between himself and those against who he transgresses.
each of us, against whom the jihad has declared war, is subject to the reprisal and action that each has in a state of nature as against each who transgresses against us.
they have declared war on each of us, and each of us, acting alone and as a duly constituted natural magistrate, has the right to kill those who wage war against us, outside of the boundaries, definitions and agreements which comprise the social compact between civilized men.
in addition, we have the problem of the magistrate who will not act to protect us from this menace, either from fear, or ignorance or connivance with those who make war upon us. such a magistrate has breached his compact, or his agreement with us, and, by so doing, stands outside the compact’s agreement. with that magistrate, who will not pay us the duty of protection owed us by our allegiance, we stand in a state of nature.
it might be asked, how this right is asserted.
just as the content of the great charter, the magna carta, was determined by the sword held in hand by each person who will stand for his liberty.
these conclusions will be more thoroughly discussed in the upcoming posts, as well as locke’s views on war, under the laws of nature.
--john jay
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