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 2nd 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 21st 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.
When does society take over the powers ascribed to the government in the Constitution when that government fails to obey it's own laws?
As to elected officials it has become like trying to order cheese cake from a fat-free menu.
Tom
Posted by: marinetbryant | April 29, 2008 at 02:56 PM
John jay, I have translated your post (with a link here and attribution) and published it to my blog.
Hope this don't upset you.
Posted by: Mirco Romanato | July 12, 2010 at 01:07 PM
micro romanato:
no, you do not upset me, i am, as a matter of fact, quite pleased that you would do so.
i hope your readers enjoy the article.
john jay
Posted by: john jay | July 12, 2010 at 02:37 PM
tom:
according to t. jefferson in the declaration of independence, ... , whenever it shall please them.
john jay
Posted by: john jay | July 12, 2010 at 02:39 PM