Natural Law and Natural RightsBy James A. Donald
Civil Society and the StatePlainly, some kinds of society are more natural than others. When the state attempts to impose an unnatural form of society, it requires a large amount of coercive violence to impose this form, and the state undermines its own cohesion in the process.
At the time that Locke wrote, natural law was about to become customary law, because the state was disarmed and the people armed. For the most part the common law of Locke's time was already consistent with natural law, but on some matters judges had to perform contortions to render the form of common law consistent with the substance of natural law. Much common law came from Roman law, and the law of the late roman empire was often quite contrary to natural law. Freedom of association is a right under natural law, a crime under Roman law. Under the law of the roman empire any association not compulsory was forbidden. In order to avoid repudiating roman law without violating natural law, the English courts had to perform elaborate contortions, and today the 59th sole prerogative of the holy roman emperor still lives on in America, in the form of the concession theory, which holds that a corporation is a part of the state, a portion of state power in private hands. This bizarre and convoluted legal fiction is highly inconvenient for businessmen, vastly lucrative for lawyers, and is a dangerously potent weapon in the hands of irresponsible bureaucrats and lawless judges.
Under the code of Justinian a corporation is a fictitious person created by the fiat of the holy roman emperor. Under natural law a trust is created by the promises that the officers of the trust make to it. (In the Latin of the early dark age “trustis” meant “band of comrades”.)
Hobbes argued that what we would now call civil society was nonexistent, or should not exist, or existed only by the fiat of the state. He argued that voluntary and private associations should be suppressed, as a threat to the power of the state, and hence a threat to order, or should only exist as part of the apparatus of the state.
Locke argued that the legitimate authority of the state was granted to it by civil society, that the state existed by the power of civil society, that this was its source of power morally and in actual fact.
Until the twentieth century Locke's position was widely accepted as self evident. When the state was unarmed and the people armed, as in eighteenth century England and America, it was indeed self evident. During the nineteenth century the utilitarians and the absolutists argued that the state derived its power from its capacity for large scale force, and only that, and that in order to impose the greater good on reluctant groups and individuals the state should have a total and absolute monopoly of all force. They therefore argued that the power and authority of the state came from force alone, and should come from force alone, that the state did not derive its substance from the civil society, that what appeared to be private and voluntary associations in reality derived their cohesion from the power of the state, and therefore the state could and should remake them as it willed, that contracts derived their power from the coercion of the state, not from the honor of the parties to the contract, and therefore the state could decide what contracts were permissible, and had the power and the right to remake and change existing contracts.
In the twentieth century this view came to widely accepted. People came to believe that civil society only existed by fiat of the state, that the state existed because its army and police were armed, and the people were unarmed, that the state existed by force. Even people who loved freedom, such as Hayek, reluctantly accepted this idea as true.
During decolonization the U.N. created governments in accordance with this false idea, the idea that all a state required to exist was firepower superior to that of private citizens, and that with superior firepower it could create a civil society, if needed, by fiat. The newly created governments attempted to remake or eliminate civil society in accordance with this false idea.
As a result of this false idea, in the third world and in the former soviet empire, a number of governments have collapsed or are close to collapse. Leviathan derives his cohesion from civil society, Without a strong civil society the police, the army, the bureaucracy and the judiciary tend to dissolve into a mob of individual thieves and hoodlums, each grabbing whatever he can, and destroying whatever he cannot. It is civil society that holds the state together. The state does not hold civil society together. Civil society is not a creation of the state. The state is a creation of civil society.
Locke has been proven right, Hobbes proven wrong, by an experiment much vaster and bloodier than that of Critias, but equally clear and decisive.
Many states have attempted to use something other than the civil society to provide the glue that hold them together, to provide them with the cohesion they need. Some have succeeded for a time, usually by using religion or the personal charisma of the leader in place of civil society. Those rulers that succeeded in using these substitutes put very great effort into their substitutes, showing that they were conscious of the weakness of their building materials, and, more importantly, showing that they were conscious that the state cannot hold itself together. It must be held together by something external to itself. It cannot give order to the rest of society, it must be given order by something outside itself.
Rulers that use something other than civil society to provide cohesion for their states are in practice a danger to their neighbors, and an even greater danger to their subjects. For this reason civil society is the only legitimate material from which a state may be made. A state based on something else is illegitimate. The neighbors of such states rightly and reasonably regard themselves as threatened, and so they should seek, and for the most part they have sought, to undermine, subvert, corrupt, and destroy such states, and to assassinate their rulers. History has shown that not only was Locke correct factually, he was also correct morally. Not only are states normally based on civil society, they should based on civil society.
The Soviet Union used the religion of communism to give their state cohesion, while the state obliterated civil society and physically exterminated the kulaks (the Russian equivalent of the English yeoman). When the rulers had faith, they were a danger to their neighbors. When they lost their faith their empire eventually fell, and their statist society is collapsing as I write, showing that democracy without economic liberty is worthless and unworkable, whilst Chile, Taiwan, and Thailand show that economic liberty eventually leads to all other liberties, because most natural rights are derived from the right to property. A civil society can only exist if there is a reasonable degree of economic freedom, if property rights are respected.