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 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, 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

blackstone's commentaries on the laws of england: the rights of men

i start by digressing.—

a witticism widely observed at law schools, to the effect that “a” students make professors, “b” students make judges and “c” students make money, while perhaps intended more as a salve to cure the hurts of poor students, has some merit, and application to the real world of law practice.  the challenges of law practice and trial work are not primarily intellectual, and are more akin to the stratagems of a military campaign than the application of pure reason: thus, in great civil affray, it is not uncommon that lawyers make competent generals, though seldom great ones.  and, the talents of those who expound the law are not generally the talents of great practitioners, as the demands of intellectual rigor and detachment, of weighing and judging, are not the demands of the partisan adversary seeking to advance the needs and desires of his client, nor particularly suited to such a task.

thus it was that sir william blackstone, a great compiler and communicator of the law, was apparently neither a very accomplished lawyer nor a particularly competent judge, working as both at various times in his career.  nor did he advocate advancements or novel applications of the law.  he was, however, a quite brilliant communicator, compiler and exponent of the virtues of the system of laws whose developments and doctrines he undertook to summarize and describe in the early 1760’s in england.   his particular genius was to see the common threads and connections that ran through the law, the policy considerations that had developed it that far, and the ability to discern how history and its values and demands had shaped that law.

he was, in short, a brilliant exponent of that which had gone before him.

he was not novel.  he was not a creator.  he was not a great philosopher.  he was a person who looked at what his fore bearers had wrought before him, at the privilege it had conferred on some and the opportunity it offered most and balanced that against the want that some suffered, and pronounced himself pleased.  there is no disguised criticism in that summation, as the same can be said of hegel, who after describing the operation of the dialectic as applied to the actual workings of societies and history, pronounced that the then existing german state was the final and best expression of the workings of the historical dialectic, looked at the result, and pronounced himself pleased as well.

people should be proud of their epochs, and their place in them.

the above is simply to prepare you for the reality that in reading the considerable material below set forth from blackstone, that all of it is subject to intellectual and historical criticism, and that all of it reflects blackstone’s comfort and familiarity with certain world views and philosophical assumptions which you may not share, and with which you may hold some antagonism.   you may not share blackstone’s view, common enough in the mid-1700’s and bulwarked by the writings of locke and rosseau, that the rights of man devolved from rights held in a “state of nature” precedent to the creation of societies and states, but you should understand that these views held great sway, and that they are fundamental to the system of law and politics which governs this country to this day.

these views may be under attack by latter day adherents to the marxist and socialist sentiments of marcuse and allinsky, and other “community organizers” of our times, but they have yet to be displaced, and you should understand how they were espoused and expressed by blackstone, who was concerned with the foundations, philosophies and assumption girding and supporting the operation of government in england.

for england was a nation of laws.  and, the proper end of the application of law, in blackstone’s view, was the pursuit of liberty, personal and political.  says blackstone, in commentaries on the laws on england, at the end of chap. 1, of the absolute right rights of individuals, book 1, of the rights of persons:

“so that this review of our situation may fully justify the observation of a learned french author, who indeed generally both thought and wrote in the spirit of genuine freedom; and who hath not scrupled to profess, even in the very bosom of his native country, that the english is the only nation in the world, where political and civil liberty is the direct end of its constitution.”  sir william blackstone, commentaries on the laws of england, vol. 1, of the rights of persons (1765), the university of chicago press, chicago & london, pub. 1979, pages 140-141.

that monsieur montesquieu should so opine seemed cogent and persuasive to blackstone: in his view english law, society and constitution was the salutary result of a social compact between persons, and between persons and sovereign, designed to assure that by the entry into same each person was to retain as much of his natural freedom existing prior to the compact as possible, and that the proper aims of government should be to impose upon and regulate the residuum of natural right as little as possible.  odd as it may seem to the contemporary mindset, which wants to see the “vigourish” in all situations, blackstone saw nothing sinister or inherently exploitive in this relationship, and saw it conferring mutual benefit upon all concerned.

blackstone saw this compact as follows, and note that the compact is “renewed” upon the “entry” of each new participant into the compact:

“the absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind.  this natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of god to man at his creation, when he endued him with the faculty of free-will.  but every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.  and this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it.  for no man, that considers a moment, would wish to remain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the same power, and then there would be no security to individuals in any of the enjoyments of life.  political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick.  hence, we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny.”  commentaries, pages 121-122.

to blackstone the proper aim of government and law (they are the same, my use is redundant) is the preservation of each person’s maximum quantum of liberty: this is as inimically apposite to the obedience of a muslim to the tenants of islam.  for blackstone posits a political system designed to foster the expression of each person’s free will, in absolute contrast to the obedience demanded of each muslim to the strictures as set forth by mohammed. says blackstone:

“for the principle aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature; but which could not be preserved in peace without the mutual assistance and intercourse, which is gained by the institution of friendly and social communities.  hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.  such rights as are social and relative result from, and are posterior to, the formation of states and societies: so that to maintain and regulate these, is clearly a subsequent consideration.”  commentaries, page 120.

we may consider that to blackstone those absolute rights referred to exist before the formation of states and societies, and this shall be commented upon latter.

it should be understood that in blackstone’s conceptualization of things, such rights while serving to confer considerable benefit were not without commensurate burden, e.g., with almost every right conferred there is associated a duty which is imposed upon another.  blackstone sets the matter out in this manner, and the notion expressed in this particular passage is a notion that i intend to visit and expand upon in the posts that follow.  says blackstone of the reciprocity involved between duties and rights:

“both may indeed by comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, that must also be due to another.  but, I apprehend it will be more clear and easy, to consider many of them as duties required from, rather than rights belonging to, particular persons.  thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other.  allegiance is the right of the magistrate, and protection the right of the people.”  commentaries, page 119.

i am going to interject some personal opinion in here, quite overtly, as i am old, and crotchety, and feel just like i have earned the right to do so, … , so there.  by trade, craft and experience, lawyers tend to be rather pragmatic, empirical and tolerant of changing circumstances. lawyers do not tend to be ideologues, at least not old ones, or at least not old ones who were educated in the liberal arts: the new smartsy fartsy one tend to be raging ideologues, but maybe they will grow out of it.

lawyers tend to be anglo saxon types, as the common law is anglo saxon, with some norman overtones.

continental theorists & jurists, on the other hand, have tended towards being highly ideological, slavishly adhering to definition, and maxim and theorem, and worshipping upon the alter of theory and postulate.  when given or having seized the opportunity to exercise power, these ideologues have tended to try and force physical reality to conform to the theory as found in the tome. it has been thus since the french revolution, and it was thus that joseph stalin, when confronted with the reality of kulaks, e.g., “middle class” peasants who were unaccounted for, and unaccountable under, marxist/lenist economic theory, simply had the kulaks shot, dispersed, exterminated and otherwise eliminated: no ideological inconsistencies from that source any more.  this was a little brutal, but a simple and straightforward way, much in keeping with stalin’s personality, to get rid of doctrinal inconsistency.

and, very european.  eropeans seem comfortable with societies and legal systems established by definition, imposed by this or that regime or government.

by contrast, in my view, lawyers (and hence, legislators) in the anglo saxon tradition seem comfortable seeing things as given to flux, imperfection, change and free from determination by intellectual definitions, and do not expect things to be always and entirely rational.  lawyers raised and matured in the anglo saxon tradition, if running a country, would never consider eliminating an entire class of people, the kulaks, for example, just to tidy up the organizational chart: just not done, old fellow.  they would slap a tax of some ridiculous sort or another upon such a group, especially if it looked profitable to the exchequer, but would never consider “liquidation” just to keep things tidy.

they tend to look to history for validation of their theoretical views, to the extent that they hold them.

in short, lawyers do not expect things to be static over time, nor do they expect them to conform to definitional norms.

this, very english.  or, at least it used to be, until generations after generation of intellectuals received their intellectual rearing at oxford in continental doctrinarism, of one sort or another, usually marxist/leninism.

so, we find in blackstone, no sense of irony or contradiction that absolute human rights are subject to manipulation by social and historical forces, but only a friendly appreciation of the fluid nature of the determination of the content of the “absolute” human rights which he talks about in chapter one, “of the absolute rights of individuals.” further, we find no abhorrence in his view that these “absolute” rights quite often were “defined” by conflict and strife, up to and including war, nor does he seem perturbed that their content quite often represented accommodations between factions of the most expedient nature, rather than the work of rarified intellect.

this, of course, comes from a thoroughly english and thoroughly non-doctrinaire appreciation of the events and personalities of history: it is, for the most part, the kind of acceptance of actual fact and occurrence which the continental theorist is entirely incapable of bringing himself to.  it is an elevation of human nature to levels entirely unacceptable to europeans, especially frenchmen, placing far too much emphasis upon actual events as opposed to turgid theorizing.

if you have the least concern with what i have just said, i have two responses: 1.)so?, and 2.)compare the first ten amendments to the united states constitution, commonly referred to as the bill of rights, and the declaration of the rights of man, approved august 26, 1789 by the national assembly of france.   hint: the bill of rights has withstood the tumult of time, and remains a serviceable device for the restraint of governmental actions, probably because of its clarity and simplicity, while the declaration of the rights of man did absolutely nothing to restrain the imposition of the french “terror” soon to follow under monsieur robespierre, in spite of its elevated and highfalutin language. 

so we have this, from blackstone, on the realities of the malleability of absolute right given the realities of political strife and conflict in a living constitution and society (hint, the two are the same in blackstone’s perception):

“the absolute rights of every englishman (which, taken in a political* and extensive sense, are usually called their liberties) as they are founded on nature and reason, so they are coeval with our form of government; though subject at times to fluctuate and change: their establishment (excellent as it is) being still human.**  at some times we have seen them depressed by overbearing and tyrannical princes; at others so luxuriant as event to tend to anarchy, a worse state than tyranny itself, as any government is better than none at all.  but the vigour of our free constitution has always delivered the nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have been over, the balance of our rights and liberties has settled to its proper level; and their fundamental articles have been from time to time asserted in parliament, as often as they were thought to be in danger.

first, by the great charter of liberties, which was obtained, sword in hand, from king john; and  afterwards, with some alterations, confirmed in parliament by king henry the third, his son.  which charter contained very few new grants; but, as sir edward coke observes, was for the most part declaratory of the principal grounds of the fundamental laws of england.  afterwards by the statuette called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered to be sent to all cathedral churches, and read twice a year to the people; and sentence of excommunication is directed to be as constantly denounced against all those that by word, deed, or counsel act contrary thereto, or in any degree infringe it.  next by a multitude of subsequent corroborating statutes, (sir edward coke, I think, reckons thirty two,) from the first edward to henry the fourth.  then, after a long interval, by the petitions of right; which was a parliamentary declaration of the liberties of the people, assented to by king charles the first in the beginning of his reign.  which was closely followed by the still more ample concession made by that unhappy prince to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly the habeas corpus act, passed under charles the second.  to these succeeded the bill of rights, or declaration delivered by the lords and commons to the prince and princess of orange 13 february 1688; and afterwards enacted in parliament, when they became king and queen: which declaration concludes in these remarkable words: “and they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties.”  and the act of parliament itself recognizes “all and singular the rights and liberties asserted and claimed in the said declaration to be the true, antient, and indubitable rights of the people of this kingdom.”  lastly, these liberties were again asserted at the commencement of the present century, in the act of settlement, whereby the crown is limited to his present majesty’s illustrious house, and some new provisions were added at the same fortunate aera for better securing our religion, laws, and liberties; which the statute declares to be “the birthright of the people of england;” according to the antient doctrine of the common law.”  commentaries, pages 123-124.

gentle reader, you have a lame and deaf ear indeed if you do not hear the violence, tumult and conflict set forth in the above paragraph, as crown and nobility and emerging classes and even perhaps peasantry struggled for ascendency or equal status in the formation of these acts.  these are not mere pieces of legislation, but these acts are the strife of centuries giving rise to the dimensions of rights, privileges and prerogatives of a vital and fluid society.

and, gentle reader, you have not much apperception of attitude and stance, if you do not note blackstone’s approval, intellectually, historically and legally, of the role that human personality, will, desire and fortitude play in the shaping of the dimension and vitality of the law, of the content of right and privilege, in the shaping of a constitutional history in the great country in which he was born and in which he flourished, as a great exponent and defender of that history.

this history, gentle reader, is written in the blood of its protagonists, and more than one person gave his life to this process on the thrust of the wrong end of a sword, or swung on the loser’s side of the gibbet.

this history, the rights devolving from it, issued from the gouts of blood given by its protagonists, born of struggle.

armed struggle.  not intellectual parsing.

lest there be any doubt on this score, we have this last observation from blackstone on the great protections available to englishmen of their rights and liberties:

“the fifth and last auxiliary right of the subject, that i shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law.  which is also declared by the same statute 1 w. & m. st. 2 c.2 and is indeed a public allowance, under due restrictions, of the natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”  commentaries, page 139.

from all of the above, it is abundantly clear that sir william blackstone regarded if not with favor, then at least historical acknowledgement, the role of the armed citizen in shaping the context, content and expression of the rights of free men in the political and social history of england.  inherent is this perception of english history is an appreciation for recourse to violence, armed conflict and even civil war on the part of groups and individuals to shape their destinies, their rights and their liberties.

and, for my purposes, we find in blackstone a theme which i will be developing in the subsequent posts, and that is the result of the recognition of the play of reciprocal duties and rights owed by and to ruler and subject.  blackstone observed that while the right of the ruler to receive allegiance from his subjects was the reciprocal of the duty of his subjects to observe their allegiance to him, so is the duty of the sovereign to protect his subjects the right of his subjects or his citizenry to receive his protection.

in future posts we shall explore that notion, and explore the further question of what happens when the sovereign fails to protect his citizenry.

what then are the citizens’ rights?

while blackstone might not approve of a citizenry defining the context and dimension of these rights by violence, he would certainly appreciate the historical truth that sometimes this is a necessary and proper way to delineate or define their context and dimension.

english of him, you know.

--john jay

*in other words, when grounded in an empirical and not theoretical way of perceiving and comprehending them

**this phrase, distinguishing blackstone from every ideologue ever conceived by regretting parents

sir william blackstone and natural law

just for giggles i decided to take a look at “commentaries on the laws of england,” by william blackstone, accorded to have been written between 1765 and 1769, for a series of lectures delivered at oxford university.

no well educated colonial american politician likely found himself unfamiliar with his thought, certainly no lawyer worthy of calling himself the same would have been without the work as a tool of his profession in his library, within mere years of its publication.  as noted by stanley katz in an introduction to vol. 1 of a four volume set, the university of Chicago press 1979:

sir william blackstone's commentaries on the laws of england (1765-1769) is the most important legal treatise ever written in the english language.  it was the dominant lawbook in england and america in the century after its publication and played a unique role in the development of the fledgling american legal system.  … .  page iii.

blackstone’s views may not have been determinative of english and american views on all things, but they were most certainly formative, considered to such an extent as to have shaped the discussion on many subjects, and most certainly reflective of the dominant views of his day.   

he was decidedly conservative, and he was not a believer in social upheaval and most certainly not of revolution.  he saw in social convention, the law and the bedrock of religious belief virtue and moderation conferred by stability and civility.

i am a lawyer, and have had recourse to blackstone many times over the years as a lawyer.  as katz notes in the introduction, “… , it can still be read with pleasure in the late twentieth century.”  page iv.  so it was not a great surprise, but of curious relevance to a previous discussion herein on religious world views, when I came across the following passages from the commentaries regarding natural law as viewed in the west, and more particularly within our anglo saxon and norman heritage as speakers of english and the descendants of that intellectual tradition.

in the following passages blackstone discusses his views of those consequences following the creation of man, and of a natural order and its derivative institution of law in human affairs, by a god that he views not only as omnipotent, but as wise and beneficent.  these views, are of course, in sharp contrast with the dogma of islam and hostility of the theologians of islam toward free will and intellectual inquiry into such matters.

it is the general application of these views to our traditions of civil law, and indeed the rather formative aspect the application of these views has to the traditions of civility and tolerance in our common law: it is not an exaggeration to say that the general attitudes expressed by blackstone, and held by very many of his contemporaries, have led to the prosperity and tolerance the western world has experienced, in relative terms, for the past 300 years.

blackstone is one of the finest writers and draftsman in the tradition of the common law.  it serves little for me to paraphrase or crib his thought, so i shall just set the following passages out at some length, and allow you, gentle reader, to enjoy writing, exposition and persuasion at their finest.

said blackstone, in section ii, of the nature of laws in general, in the introduction to the commentaries:

this then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it’s existence depends on that obedience.  But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior.  page 39, commentaries.

in this passage blackstone assumes, if not overtly argues, that god would not have created man with the faculties of reason and will had god not meant those faculties to be put to use: indeed, blackstone observes that having been so endowed by his maker it is man’s obligation to apply those faculties in “…the general regulation of his behavior.”  one can almost hear blackstone say under his breath, god may have thought this creature to prove contentious and a bit prickly, and imagine a godly smile over his handiwork.

blackstone continues:

man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being.  a being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct:  not indeed in every particular, but in all those points wherein his dependence consists.  this principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited.  and consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.

this will of his maker is called the law of nature.  for as god, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty to reason to discover the purport of those laws.  pages 39-40, commentaries.

in the world view of our intellectual tradition, as partaken of and as formed by the contribution of blackstone’s views, the law of nature and god are discoverable by the use of human intellect, inquiry and presumably discussion, and are not wholly dependent upon divine revelation or imposition: as we shall see, however, blackstone also respected divine revelation as a wellspring of human law.  there is, however, every indication in his views that man having discovered the “…purport of these laws. …” man is free to partake of and shape the wisdom so obtained.   he need not turn to god as supplicant for everything that he discerns reasons or discovers, but may apply it as the fruit of his will, reason and endeavor.

these are liberating and ennobling views, and blackstone next considers why this should be so, and considers the nature and quality of the supreme maker who would imbue humans with such capacities:

considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe.  but as he is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept.  these are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions.  such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one it’s due; to which three general precepts Justinian has reduced the whole doctrine of law.

but if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it’s inseparable companion.  as therefore the creator is a being, not only of infinite power, and wisdom, but, also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action.  for he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter.  in consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own happiness.”  this is the foundation of what we call ethics, or natural law.  for the several articles into which it is branched in our systems, amount to nor more than demonstrating, that this or that action tend to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature: or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that he law of nature forbids it.

……

but in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life: by considering, what method will tend the most effectually to our own substantial happiness.  and if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this.  but every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

this has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it’s laws by an immediate and direct revelation.  the doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.  these precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity.  but we are not from thence to conclude that the knowledge of these truths was attainable by reason, in it’s present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages.  as then the moral precepts of this law are indeed of the same origin with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity.  yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority that what we generally call the natural law.  because one is the law of nature, expressly declared so to be by god himself; that other is only what, by the assistance of human reason, we imagine to be that law.  if we could be as certain of the later as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.  pages, 40 to 42.

this last paragraph is a subtle structure.

it is an expression of intellectual limitation and humility that works in two directions.  it is a humility that does not deign to speak for god via the human voice, and leaves the workings of revelation to speak for themselves.  it strikes me rather curiously as i think about it, but i think that blackstone would have been reluctant under any circumstance to have proclaimed himself the prophet and voice of god.

he seems perfectly contented to have let revelation speak for itself.

he seems, on the other hand, entirely comfortable with the notion that man is indeed fallible and limited in his reason, and while he is proud of the capacity of man to reason and to ameliorate and improve his conduct morally and spiritually upon this earth, (the function, by the way, we should remind ourselves, of human law) the notion of such fallibility cautions man, and a man, to speak with excessive certitude about the divining of god.

yet, blackstone is not content to envision man as the mere tool of divine whimsy or caprice, and there is immense pride in the capacity of the human intellect:

because one is the law of nature, expressly declared so to be by god himself; that other is only what, by the assistance of human reason, we imagine to be that law.  if we could be as certain of the later as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

there is in that last sentence, an assertion of a tremendous human pride.  for blackstone says that if man can be certain of his position, if he can perhaps write a brief squarely on all fours, then human reason and intellect may very well stand with divinity.  but, he cautions, before pride there must be intellectual certitude.

these, of course, are not the precepts of islam.

to hold such views as expressed by blackstone, and to place such reliance in and faith about the power of human reason to seek and find divine truth, explore and define it, are anathema to muslim “theology.”  the values and beliefs inhering in blackstone’s conceptualization of the function of human reason and inquiry are immutably opposed to the muslim view of the prophet mohammed’s revelations serving as the sole conduit to divine truth.  the muslim view of mohammed at the last prophet of god, as the last human conduit to truth, is of course, inimically apposite to blackstone’s reliance upon thought, reason and inquiry as a way of partaking in god’s natural law, of attaining god’s scheme of things, upon the nickel of man’s own efforts and growth.

now, i do not pretend that blackstone is the last word in theology, or epistemology, or etiology, and even that he was any kind of competent theologian or theologian. 

he was, after all, an oxford professor delivering a series of lectures on law.

what he does reveal, and quite eloquently in my opinion, is a world view held more or less in agreement throughout the western world throughout the centuries in which a great deal of faith is placed in the efficacy of human reason to be able to partake in the scheme of law or reality as created by god, and to recognize the precepts of good and act to partake of it, and to concomitantly recognize the pitfalls and delusions of evil, and to avoid and oppose it as need be.

in blackstone’s world, good is found and partaken of by reason and inquiry.  it need not be dictated, and enlightenment is not found by the ministrations of the cudgel.

--john jay