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JOHN LOCKE
W.
VON
AND NATURAL
LEYDEN,
LAW
D.Phil.
IT has been said, and fewwould deny,that JohnLocke is as importantas the founderof philosophicalliberalismas he is as the
oftheempiricist
theoryofknowledge.
Thoughhe was a most
founder
education,
on philosophy,
politics,medicine,
versatilethinker,
writing
on
all
these
the
knowledge
of an
and
with
religion,and economics,
his fameno doubtderives
of an authority,
expertand the influence
on the one hand fromhis treatiseson Tolerationand CivilGovernon the other.
ment,and fromhis Essay on Human Understanding
are
Whenevertheseare expoundedby scholars,thepoliticalwritings
oftheEssay and theEssayindependently
of
discussedindependently
The reasonforthisis obviouslythat scholars
the politicalwritings.
haveseenverylittleconnexionbetweenLocke'sprincipalworks.This
in whichare
has been changedwiththe appearanceof a manuscript
by Lockein Latin
preserved
eightessayson thelaw ofnaturewritten
shortlyafterthe Restorationof i66o and thirtyyears beforethe
has been
appearancein printof his majorworks.This manuscript
publishedby me,and it is nowpossibleto recognizethatLocke'stwo
mainbodiesofdoctrine,
namelyhispoliticaltheoryand histheoryof
knowledge,have a commongroundand that this lies in his early
thenotionofa naturallawcan be
doctrineofnaturallaw.Admittedly,
in his treatiseon CivilGovernment
seento be ofcentralimportance
littleis
and it also playsits partin the Essay. But disappointingly
and it is
said by Locke about thisnotionin eitherofthesewritings,
not untilthe appearanceof his essayson naturallaw that we learn
relationbetweenthetwomainpartsofhis
thatthereis an important
teachingand whatthisrelationis.
concerning
the
In thispaperI wishto examineLocke'sarguments
existenceand bindingforceof naturallaw. I have alreadytouched
tomyedition,
uponcertainaspectsofthisquestionintheintroduction
but theretheywererelatedto theirhistoricalsettingand othersideissues.Now my purposeis morespecific.I am also concludingthis
paperwithan entryin Locke'sJournal,whichcontainscertainbasic
ideas ofhis theoryofnaturallaw and whichhas forsomereasonor
otherescapedpublication.
is notthesame
The law ofnatureas it occursin Locke'sphilosophy
of
nature:
it is notconlaws
Newton's
so-called
as one ofGalileo'sor
In the
motion
or
cernedwithphysicalphenomena,their
regularity.
it
refers
to
human
behaviour
uses
the
and
sensein whichLocke
term,
a
of
notion
of
law
nature
has
had
the
a
to a morallaw. In thissense
and
well-known
jurists,
historyamongmoralists,politicaltheorists,
beforeand afterLocke's time.
theologians
23
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PHILOSOPHY
theidea was Aristotle.
He contrasted
The firstperhapsto introduce
behaviourofthingsin naturewiththevarietiesofhuman
theuniform
codesofbehaviour.Fire,he said,alwaysbumsalikeno matterwhere
in Greeceorin Persia,to-dayor a thousand
orwhenit is lit; whether
yearsago. On the otherhand the customsof men,theirmoraland
municipallaws varyfromplace to place and changefromone time
to another.However,thereis forAristotleone formof morallaw
whichis eternaland immutableand has thesameforceeverywhere;
as a law governing
and becausethislaw is supposedto be as uniform
refers
to
it
natural
as a
morallaw, sharply
naturalphenomenahe
it fromman-madelaws whichhe calls conventional.
distinguishing
the
throughout
Thisidea ofa naturallaw obtainedgreatinfluence
periodwhenthe Roman Empirespreadand the wholeof civilized
in which
humanitywas thoughtto formone universalcommunity,
all menwereequal by virtueoftheircommonrationalnature.The
and the Romanlawyerselaboratedthisidea and
stoic philosophers
He speaks of truelaw as being
Cicerogave it a famousdefinition.
withnature,of universalapplicationand
rightreasonin agreement
thatthereis no needforus to lookoutsideourselvesfor
unchanging;
ofit,thoughGodis theauthorofthislaw and thejudge
an interpreter
it.
who enforces
That Christianity,
fillingthevacuumcausedby thebreakdownof
theRomanempire,adoptedthebeliefin a law ofnaturecan be seen
fromthe factthat the idea of naturallaw appearsas a basic conand
emperor
Justinian
ceptionbothin thelaw-booksoftheChristian
in Canon law. Throughoutthe Middle Ages the ultimateappeal
regarding
morals,politics,law and also divinitywas to naturallaw,
and by naturallaw theschoolmenmeanta law promulgated
by God
in a naturalway and knownby reason,i.e. a law otherthan God's
Naturallaw together
with
positivelaw whichis knownby revelation.
was thusregardedas constituting
thelaw laid downin theScriptures
thewholeofthe divinelaw. As suchit was acceptedas an objective
'ruleand measure,'an absolutecontrolling
principle.
and sixteenthcenturies,
as we know,witnessedthe
The fifteenth
of humanismand the newoutlook
of a secularmorality,
emergence
of the Renaissance.It was in connexionwiththisnew outlookand
whichadvocatedthe'priesthood
of
withtheadventofProtestantism
thatnaturallaw cameto
all believers'and thenecessityoftoleration
be regardedas a bodyofindividualrights,of subjectiveclaimsand
ratherthancontrolling
During
thusmainlyas a liberating,
principle.
and eighteenth
centuriesthe studyof naturallaw
the seventeenth
whothoughtthislaw to be
was pursuedby juristson the Continent
of
and theresultofa purely
independent theologicalpresuppositions
of
a
matter
mathematical
scientific
deduction.At the
construction,
same time,whileBritishmoralistsattemptedto provideethicswith
24
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JOHN
LOCKE
AND
NATURAL
LAW
a rationalfoundation,
Anglicanssoughtin thelightofcontemporary
knowledgeto redefinethe place of naturallaw withinChristian
apologetics.
thenineteenth
Throughout
century,
owingto theadvanceofcritical
therewas a markedtendencyto rejectmany
and scepticalarguments,
of the traditionalcriteriaof moralityand to adopt positivistapin legal theory.In fact,the rise of modem
proaches,particularly
is characterized
of the theoryof
jurisprudence
by the abandonment
naturallaw. Also most modernphilosophers,
analystsas well as
have cometo regardthisnotionas obsolete.Yet we find
positivists,
that betweenthe two wars and again in recenttimesa numberof
have admittedthattheycannotdispensewiththisconcept.
thinkers
maintainthatnatural
Whileadmitting
this,somewouldnevertheless
is pure superis
with
which
this
associated
law and the theology
is
because
the
facts
involvedin law include
stition.For themit only
theideasmenhave ofcertaingeneralor supernatural
characteristics
musttakethemintoaccount.On theother
thatthelegalphilosopher
thinkers
whogenuinely
believein some
hand,therearecontemporary
sortofnaturallaw and makethisthe basis of theirowntheories.
in thisconnexionto notethatit is only
It is certainlyinteresting
in Russia that no tracesof natural-lawtheoryhave existedat any
time.ThoughRussia, like the West, has a Christiantradition,it
fromtheWestin havingno humanisttradition.And theidea
differs
of a naturallaw, as I have triedto show,was derivedin the first
theStoics,and
thatofAristotle,
instancefrompre-Christian
thought,
linkedwiththehumanistbeliefin theefficacy
Cicero:it is intimately
ofhiswill,and hismoralresponsibility.
ofman'sreason,thefreedom
oftheidea ofnatural
Havingsketchedthehistoricaldevelopment
in hispublished
law,let us considerwhatdoctrineLockecontributed
can be
works.His teachingin the Second Treatiseof Government
as follows:
summarized
The law ofnatureis a declarationof God's willand a standardof
rightand wrong.It is a law thatalreadygovernsthestateofnature,
statein whichall menarefreeand equal,and in which
i.e. a pre-social
in peace. If menmakepromisesto one anotherin
theylive together
boundby them,
the stateof nature,theymustconsiderthemselves
'for truthand keepingfaithbelongto men as men, and not as
membersofsociety.'It is likewiseaccordingto thislaw and priorto
is determined.
anypositivecivillawsthateachman'sprivateproperty
and
all
its
fruits
to
men
in common,
earth
the
God
has
Though
given
the law of naturesets boundsto what each man is allowedto appropriateand keepforhimself.Sincewithintheseboundsa person's
'rightand conveniency'go together,therecan be littleroom for
quarrelsaboutproperty.
Further,forLocke partofGod's purposein
to
man
was
creating
'put himunderstrongobligationsofnecessity,
25
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PHI LOSOPHY
convenience,
and inclination
to drivehimintosociety,as wellas to
fithimwithunderstanding
and languageto continueand enjoyit.'
man'slifein societyand underpoliticalgovernment,
the
Throughout
obligationsof thelaw ofnatureremainvalid,and it is onlyas they
are foundedon thislaw thatthemunicipallaws ofcountriesare just
onlyin so faras
laws. In general,politicalpowerforLockeis justified
of
men'snaturalrights,
it preserves
especiallythose lifeand property.
is thuslimitedbothby naturallaw and by men'srights,
Government
and thesetwo came to be almostidenticalforLocke. On the other
hand, what man did not possessin the state of naturehe cannot
whenhe entersit: sincehe had no arbitrary
resignto thecommunity
rightin the state of natureto act againstthe law of nature,i.e. to
whichis nothis,
destroyhimselfor others,or to take awayproperty
thereshouldnotbe any sucharbitrary
powerin society.
It can be seen that the part played by naturallaw in Locke's
It is becausehe believesthis
politicaltheoryis indeedfundamental.
law to be thelaw ofthestateofnature,and thisstateofnatureto be
by men'slifein society,
notaltogether
annulledwhenit is superseded
that forhim naturallaw remainsvalid in societyand in factsets
To put thepointless metaphorically:
limitsto politicalgovernment.
becausehe is rational,man,accordingto Locke,is eternallysubject
to naturallaw,itselfa rationallaw,regardlessof whetheror not he
livesin an establishedsociety.
Unfortunately,
despitethe basic importanceof naturallaw for
Locke's politicaltheory,thereis littlereal discussionofit in any of
In a passageofhisSecondTreatiseof
his maturepublishedwritings.
he evenexpressly
declinesan investigation
oftheparticuGovernment
is
larsofthislaw; yetwhatwe shouldlikehimto tellus particularly
how he thinkswe cometo knownaturallaw, and how and to what
extentit can be said to be binding.In myview,Locke tendedin his
lateryearsto regardthenotionofa law ofnatureas a merepremise
ofhis thought,as something
he believedin but barelyinvestigated.
The reasonforthisattitude,I think,is to be foundin difficulties
he
had in reconciling
the notionof thislaw withsome of his mature
ofhishedonisticviewsand
For instance,thedevelopment
doctrines.
his philosophy
forhim
oflanguagein theEssay had madeit difficult
to attempta fullexpositionof naturallaw or even to believein it
whole-heartedly.
However,with the discoveryof Locke's early manuscripton
naturallaw we are in a positionto fillin the picturewhichis left
rathervague in his matureworks.We can see nowthatmostofhis
remarksaboutthelaw ofnaturein theSecondTreatiseand theEssay
have their originin his early essays. In particular,two crucial
questions(about whichthereis hardlyany discussionat all in his
maturewritings)
obviouslyexercisedhis mindwhenhe was writing
26
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JOHN
LOCKE
AND
NATURAL
LAW
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PHILOSOPHY
involveconfusedideas about reason.Issues that shouldbe clearly
fromone anotherin any trulyrationalexpositionare
distinguished
mattersof fact
obscuredif one passes fromstatementsconcerning
about
ways
of
knowledge,to
to
statements
to definitions,
thence
throughof
and
to
truths,
assuming
finally
logical
judgments value,
of
the
is
a
in
one
and the same sortof
step
out that each
passages
withone and thesame
inferential
process,and thateachis concerned
meaningofrationality.
ofthiskindoccursin
It can be shown,I believe,thata confusion
everytheoryofnaturallaw: I can onlygiveone examplehere,and I
arisesin Locke'stheory.The line
willtryto showhowtheconfusion
of my enquirywillfollowwhat I take to be the logicalstepsofhis
argument.They are brieflythese: Locke passes fromthe factual
statement
thatmanpossessesreasonto theconclusionthatreasonis
and henceto the assumptionthatreason
his essentialcharacteristic
leads to the discoveryofmoraltruthsand,ifproperlyemployed,to
ofoneand thesamesetofmoraltruths,
i.e. naturallaw.
thediscovery
Fromthishe is led to inferethicalassertionsto the effectthat the
moralstandardsdiscoveredby reasonare themselvesrationaland
thattheyare commandsbindingon all men.Fromthishe passesto
canbe provedbyreason,
thebeliefthatthevalidityofsuchcommands
and even shownto be necessaryin the same way as a geometrical
or a logicaldeduction.
demonstration
issimple:it is thefactualstatement
thatmen
Locke'sstarting-point
possessreasonand use theirreason.The factthatsomemencannot
reasonand thatsomeofthosewhocan do notis admittedby Locke,
and to thosewhobecauseoftheir
and he refers
to idiotsand children
emotionalnatureorbecausetheyarelazyorcareless,makeno proper
hisnextstepis to assert
use oftheirreason.In spiteofthisadmission,
property
thatmennotonlycanreasonbutthatreasonis theirdefining
is
their
function
to
i.e.
that
exercise
and thattherefore special
they
it,
are obligedto use theirreason.
proposition-ifit
Locke's inference
hereis fromthematter-of-fact
is a matter-of-fact
proposition-thatall men are rational,to the
in orderto be trulymen,men
is a definition-that
statement-which
is notso muchaboutan indisputable
mustbe rational.Thisstatement
idea of'fixednatures.'Though
factas a beliefderivedfromAristotle's
definitions
dependin somesenseon evidence,theyare notempirical
i.e. statementsabout fact,whichcan be eithertrueor
statements,
cannotbe validatedor invalidatedby statefalse;hencedefinitions
mentsof a purelyfactualkind.Moreover,froma statementabout
i.e. a statement
man'sdefining
thatis neithera moral
characteristic,
is inferred
thathe has
one nora necessaryone,themoralproposition
withhisessentialnature.Thisconformity
a dutyto livein conformity
is in itsturntwofold:it maymeanthatit is man'sdutyto use reason
28
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JOHN
LOCKE
AND
NATURAL
LAW
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PHI LOSOPHY
Our sensestellus notonlyofbodiesand theirmotionsbut also of
beautyand regularity
in all partsoftheworld.Sincethisbeautyand
regularity
mustbe the resultof somesuperiordesign,reasoninfers
the existenceof a mostwise and powerfulCreator.This argument
fromdesigntogether
withtheso-calledanthropological
argument
are
singledout by Locke fromamongthe traditionalproofsof God's
existencepreciselybecause thesetwo argumentsare derivedfrom
sense-experience
and,apartfromrationalinference,
requireno further
support,whereasall othersuch proofspresupposea priorinotions
whichLockeis unwilling
to accept.Lockegoeson to showthatsince
God is notonlypowerful
butalso wise,He has designedtheworldfor
somepurposeand thatwe findin everything
a definite
ruleorpattern
appropriate
to its nature.God's purposein creatingmanwas thathe
should live accordingto reason. Two particularfunctionshe is
intendedto perform
are to worshipGod and to live in societywith
othermen.
What Locke has endeavouredto establishso far is firstlythat
thereexistsa law-maker,
i.e. some superiorpowerto whichman is
rightlysubject,and secondlythat this law-makerhas expresseda
will,thisbeingthelaw ofnature.Thusin Locke'sviewit is reasonin
withsense-experience
co-operation
whichrevealsthe existenceof a
naturallaw and also the dictatesof thislaw. The wholeof Locke's
argumenthereis derivedfromthe scholasticsand thereis nothing
originalaboutit exceptperhapshisinsistenceon thepartplayedby
sense-perception.
Whethernovelor not,one maywonderiftheargumentformstherightapproachto thequestionat issue.Whenasking
himselfwhethernaturallaw can be known,Locke does not fora
momentconsiderthe possibilitythat this law, and expressionsof
value generally,
mightnot belongto the class of thingsof whichit
makessenseto say thattheyare knownin theordinarysenseofthe
word,i.e. that statementsabout themcan be justifiedby reference
to empiricalfacts,to rules of inference,
or to self-evident
truths.
Locke does notfacethisissueand insteadmakestheproperemploymentof man's naturalfacultiesa necessaryand sufficient
condition
fortheknowledge
ofnaturallaw. Yet no matterto whatextentmen's
sensesand theirreasonare foundto be efficient,
thisefficiency
is no
criterion
by whichto decidewhether
naturallaw is a properobjectof
knowledge.Such a decisionmustbe derivedfroman analysisofthe
conceptofnaturallaw ratherdifferent
fromtheone Lockeoffered.
The nextstepin Locke's argumentagain consistsofan inference:
he passesfromwhathe has hitherto
establishedto ethicalassertions
thebindingforceofnaturallaw. Havingshownthatman's
concerning
reasoncan lead to thediscovery
ofcertainrationalprinciples,
he goes
on to concludethatman is morallyobligedto acceptthesefindings
of his reason.In otherwords,Locke startswithcertainstatements
30
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JOHN
LOCKE
AND
NATURAL
LAW
Let us considerbriefly
at whichpointin Locke's argumentmoral
assertionsare introduced.
Theyappearin twocontexts.One is where
Locke advances his proofof God's existenceand the 'voluntarist'
thatlaw or men'sdutiesare the exprestheory(orratherdefinition)
sionofa superiorwill.For Locke thenmoralobligationsare binding
becausetheyarisefromGod's commands.NowfromsayingthatGod
commandsus to do certainactionswe cannotinferthatwe oughtto
do them,notevenifwe add thefurther
premisethatGod commands
us to obeyHis commands.The ethicalstatement
ourduty
concerning
to do certainactionscan be derivedonlyfromanotherethicalstatementsuchas thatwe oughtto do whatGod commands.For Locke
sucha derivation
is in factpossiblesincehe arguesthatobedienceto
God's willis right,thatis, obligatory.
Howeverany deductionfrom
thispremiseorfirstmoralprinciple,
i.e. thata creatureoughtto obey
thewishofhisCreator,maybe said to be compellingonlyif thepremise is self-evident,
whichis doubtfulin Locke's example,forit
wouldnotbe self-contradictory
to rejecttheprinciple
thatobedience
to God's willis right.Moreover,
the 'voluntarist'
theorycarrieswith
it an implicationwhich Locke obviouslyfounddissatisfying,
for
element
togetherwiththe conceptof willit introducesan arbitrary
intomorality.
In orderto makehistheorymoreperfect,
Lockeattemptsto derive
moral obligationin some otherway. He does this as part of his
endeavourto arriveat a purelyrationalfoundationof ethics.For
3I
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PHILOSOPHY
himhumanreasonnot onlyindicatesor teacheswhatman's duties
are,but at thesame timemakeshis dutiesbinding;it is thusa selfdependingsourceof obligation.He maintainsthat naturallaw is
coevalwiththehumanraceand thatall menare subjectto it sinceit
is 'so firmly
rootedin thesoil ofhumannature.'In his viewthereis
in fact a 'harmony'or 'conformity'
betweenmoral
(convenientia)
valuesand man'srationalnature;foras man's natureis alwaysthe
ruleof morals.
same so reason'pronounces'a fixedand permanent
One maywonderhowfromtheseviewsLocke can arriveat a theory
ofmoralobligation.
To derivenaturallaw fromman'srationalnature,
and this,in its turn,fromGod's wisdomin creatingman suchthat
is to drawan ethicalconcertaindutiesfollowfromhis constitution
thesameobjecnon-ethical
premises.Therefore
clusionfromentirely
theoryoflaw.
tionapplieshereas in connexionwiththe'voluntarist'
To put the pointdifferently
one mightsay thatreasoncan perhaps
declarewhattypeof actionis in accordancewithman's natureand
in somesensenecessary;but it does nottherebyprovea
is therefore
moralobligationto perform
the action.Grotius,Locke's contemporary,admittedthatnaturallaw,ifdefinedas a dictateofrightreason
only indicateswhetheror not an action is morallynecessary,and
beforehim Suarezhad pointedout thatin thiscapacityit wouldbe
ofthenatureofa directive
ruleratherthanofa law in thestrictsense,
a law havinga bindingforce.
But thisdifficulty,
Locke wouldargue,can be overcomeby establishinga close analogy betweenmoral knowledgeand mathemaif
exampleofa doubtful,
tics.The stephe proposesnowis a further
For
not illegitimate,
passagefromone kindof discourseto another.
fromassertionsabout moralruleshe passesto theassertionthatthe
validityoftheserulescan be proved,and evenshownto be necessary
in thesameway as a geometrical
demonstration.
Locke advanceshis new argumentin connexionwithhis notion
of a harmonybetweennaturallaw and man's rationalnature.Thus
fromthe
he says: 'In factit seemsto me to followjust as necessarily
natureofman that,ifhe is a man,he is boundto love and worship
to therationalnature,
God and also to fulfil
otherthingsappropriate
i.e. to observethe law of nature,as it followsfromthe natureof a
its threeanglesare equal to tworight
trianglethat,ifit is a triangle,
angles.' By analogy with mathematicalnecessityLocke here endeavoursto establishthe necessary
validityof moralrules.It is not
in thispassagehe thinksofmoral
altogether
clear,however,whether
truthsas self-evident
principlesor as deductionsfromself-evident
Fromanotherpassagewherehe wantsto makeclearthat
principles.
man'sdutiesnecessarily
followfromhis verynatureit mightappear
forhe comparestheway
thathe regardsmoraltruthsas self-evident;
in whichtheseare apprehended
to theway in whichmen,so longas
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JOHN
LOCKE
AND
NATURAL
LAW
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PHI LOSOPHY
any attemptto provethata moralruleis bindingis doomedto fail
ifit is consideredto be thesame as an attemptto provethat a geois valid.
metricaldemonstration
I concludethat,forthe reasonsI have given,Locke's theoryof
which
naturallaw is open to criticism;that becausethe difficulties
defence
besethis theoryare liableto be presentin any philosophical
ofthislaw as a law ofreason,no suchdefencecan eversucceed.To
say thisis not to denythatnaturallaw is acceptableas thebasis of
moral obligationif one regardsit as a premiseof thoughtwhich
justifiedby reason,i.e. as an articleoffaith,or an
cannotbe further
issuefromthatwhichI have
ideal.But thiswouldbe a verydifferent
a philosophical
discussedin thispaper,and becauseit is notprimarily
into
it
further.
It
shouldbe reto
I
do
not
go
propose
problem,
in
his
later
came to
that
Locke
years,
himself,
however,
membered,
of
mere
nature
as
a
his
thought,
of
a
law
of
premise
regardtheidea
in
and that he musthave perceivedcertaintheoreticaldifficulties
this notion,for he could neverbringhimselfto publishhis own
doctrinein the essays.
Here thenis a summaryofwhatI have triedto say in thispaper.
First I outlinedthe developmentof the idea of naturallaw from
antiquityto moderntimes.ThenI gavea briefaccountofwhatLocke
and showedthat
saysaboutnaturallaw in his TreatiseofGovernment
forhispoliticaland
importance
as a rationallaw it is offundamental
However,we findthemostdetailedaccountofhis
moralphilosophy.
discoveredessays,theworkofhis
doctrineofnaturallaw in recently
youth,and it is becausetherehe entersso fullyintothe particulars
of thislaw thatit is possibleforus to subjecthis theoryto a close
examinationand to pointout exactlywherethe weaknesseslie. We
arisesfroman ambiguityin the central
saw thatthe chiefdifficulty
notion,that of reason.I explainedthat this ambiguityis liable to
in anytheoryofnaturallaw to theextentthat
giveriseto confusions
an attemptto justifyrationallythe moral
such a theoryrepresents
wouldbe in the
law as a law ofreason.Sucha processofjustification
formofa logicaldeduction;but sincethemainterm,thatofreason,
senses,thereare bound to occur
would be employedin different
fromone kindof discourseto another.The
illegitimateinferences
in Locke's argumentare fromfactualstatementsconinferences
reason;thenceto statements
concerning
cerningreasonto definitions
about discoveriesmade by reason,fromwhichcertainethicalstateare derived;
thebindingforceofrationalprinciples
mentsconcerning
in theirturn,are thoughtto be like statements
in
thesestatements,
i.e. capableoflogicalproof,an analogywhichobscures
mathematics,
betweenmoraland logicalnecessity.
the distinction
is Locke'sJournalentryforI5 July,i678 (Bodleian
[The following
34
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JOHN
LOCKE
AND
NATURAL
LAW
35
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