The names of such things as affect us, that is, which please, and displease us, because all men be not alike affected with the same thing, nor the same man at all times, are in the common discourses of men of inconstant signification. For seeing all names are imposed to signifie our conceptions; and all our affections are but conceptions; when we conceive the same things differently, we can hardly avoyd different naming of them. For though the nature of what we conceive, be the same; yet the diversity of our reception of it, in respect of different constitutions of body, and prejudices of opinion, gives everything a tincture of our different passions. And therefore in reasoning, a man must take heed of words; which besides the signification of what we imagine of their nature, have a signification also of the nature, disposition, and interest of the speaker; such as are the names of Vertues, and Vices; For one man calleth Wisdome, what another calleth feare; and one cruelty, what another justice; one prodigality, what another magnanimity; and one gravity, what another stupidity, &c. And therefore such names can never be true grounds of any ratiocination. No more can Metaphors, and Tropes of speech: but these are less dangerous, because they profess their inconstancy; which the other do not.
Thomas Hobbes, Leviathan, Part 1: Of Man, section 4: Of Speech
What wish is enacted, what desire is gratified, by the fantasy that real events are properly represented when they can be shown to display the formal coherency of a story?
Hayden White, “Narrativity in the Representation of Reality,” The Content of the Form: Narrative Discourse and Historical Representation (Baltimore: Johns Hopkins University Press, 1987), 2.
In the early time, long ago, an Indian maiden was taken into the sky. When she came back to the land, the man who took her turned into a grizzly bear. Her three brothers searched for her but found the bear first and killed it without realizing that it was their sister’s husband. They brought the skin to where the river calls back the salmon every year. The Gitksan peoples have been in Kispiox ever since.
“Canadian Indians Celebrate Vindication of their History,” Anthony DePalma, New York Times, Feb. 9, 1998, A8.
Angelia Means’ essay “Narrative Argumentation: Arguing with Natives” (2002) grapples with the question of how the proceduralist methodology employed in democratic constitutional interpretation might hermeneutically place putative forms of “cultural difference” in the “best possible light.” One of the strengths of this essay is the way Means spells out conditions in which groups with manifestly incommensurable worldviews might achieve some degree of mutual recognition—in this case, the translation of the meaning of property rights. However, I want to raise critical questions about the specific proposals offered in this essay for understanding how the admission of the narratives of the “non-Western, colonized Other” might contribute to intercultural democracy. I am presumably in full agreement with Means on the question of whether indigenous populations in the Americas should receive equitable and just legal treatment: they should. However, my disagreement concerns the analytical and normative arguments she makes on the basis of Delgamuukw v. the Crown, a case which she defines as a “disagreement over the interpretation of rights that reaches into modes of argumentation and evidence adduced to prove rights” (Means 2002: 223). The issues I want to address are whether sacred narratives – infused with ethical meaning – should “count” as evidence of property rights (prior possession) in a legal proceeding and whether the admission of these texts by the Canadian Supreme Court provides an appropriate model for processes of democratic cultural recognition. In short, I’m not persuaded by Means’ assertion that
In a democracy, we cannot legitimately discount the argumentative authority of those who make arguments that cannot possibly be persuasive absent our willingness to revise what we find persuasive… (Means 2002: 237-238).
Two points covered below:
1. Unavoidable problems of validity arise from truth claims made on the basis of narratives that mix reality and imagination in narrativized form.
2. I’ll briefly defend the hermeneutics of suspicion.
1. On the Narrative as Argumentation
On the surface, I find the arguments for the inclusion of narratives in legal proceedings to be uncontroversial. Before the law, prosecutors, defense attorneys, plaintiffs, and defendants tell stories. What matters in a legal process, of course, is whether the evidentiary basis of these stories can withstand the test of cross examination: in other words, evidence must be viewed by a jury or panel of judges as valid (unbiased and not artifactual); witnesses, who corroborate or refute opposed narrations of the same objective event, must be viewed as credible. The strong claim in Means’ essay is that the narratives of the Other, who is alleged to interpret differently, must count as persuasive evidence if ethnocentrism is to be avoided.
…we can and must learn to comprehend cultural narratives which appear to be untranslatable from the perspective of modern law. From the vantage point of democratic legitimacy, we must provide intercultural support for democratic norms for two reasons: 1) to ensure equal rights for “all,” including the “cultural stranger” and 2) to persuade the “cultural stranger” that argumentative practices of rights justification are not ethnocentric. (Means 2002: 221)
In the absence of cultural recognition as an element of constitutional interpretation, it would be impossible to give meaning to a concept of property rights that was not ethnocentric, and the effect would be to once again dispossess Native persons of rights, only this time they would be dispossessed of constitutional rights. (Means 2002: 224)
However, I am not sure that the authority and validity of the narrative form itself can be taken as self-evident. A few definitional questions are worth asking: what is narrative? What does interpretation involve? And, what model of intercultural democracy best fits cultural difference so construed?
Following Hayden White (1987: 2), we can distinguish between “a historical discourse that narrates and a discourse that narrativizes, between a discourse that openly adopts a perspective that looks out on the world and reports it and a [narrative] discourse that feigns to make the world speak itself and speak itself as a story.” In historical discourse, ‘subjectivity’ “is given by the presence, explicit or implicit, of an ‘ego’ who can be defined ‘only as the person who maintains the discourse.’ By contrast, the ‘objectivity’ of narrative is defined by the absence of all reference to the narrator’ . […] The events are chronologically recorded as they appear on the horizon of the story. No one speaks. The events seem to tell themselves” (1987: 3). What White describes as narrative seems to fit the “Aboriginal” stories entered as a factual (i.e., real) basis for property rights claims (for “Aboriginal Title”).
White poses a series of critical remarks that I think are appropriate for judging these expressive narratives. He asks
What is involved in the production of a discourse in which ‘events seem to tell themselves,’ especially when it is a matter of events that are explicitly identified as real rather than imaginary, as in the case of historical representations? In a discourse having to do with manifestly imaginary events, which are the ‘contents’ of fictional discourses, the question poses few problems. For why should not imaginary events be represented as ‘speaking themselves’. […] But real events should not speak, should not tell themselves. Real events should simply be; they can perfectly well serve as the referents of a discourse, can be spoken about, but they should not pose as the subjects of a narrative.” (White 1982: 3)
Can a narrative in which imaginary events “speak themselves” as real events count as a persuasive argument? Here, Habermas’s theory of communicative action offers insight : “I call interactions communicative when the participants coordinate their plans of action consensually, with the agreement reached at any point being evaluated in terms of intersubjective recognition of validity claims. […] Those claims are claims to truth, claims to rightness, and claims to truthfulness, according to whether the speaker refers to something in the objective world (as the totality of existing states of affairs), to something in the shared social world (as the totality of the legitimately regulated interpersonal relationships of a social group), or to something in his own subjective world (as the totality of experiences to which one has privileged access)” (Habermas 1990: 58). In the case of Aboriginal narratives, it would seem that typical methods of persuasion, involving assessments of truth, rightness, or sincerity, do not arise (1) because neither an objective world nor a shared social world is a referent and (2) because the authorial role is effaced.
What might this mean for interpretive practice? According to Paul Ricoeur, when an interpretive situation does not allow for a dialogue between the author of a text and a reader, the “text” ceases to have a referent and it replaces speech. In this “space of literature,” texts relate to other texts (and the interpretations of texts) and nothing else (neither to the author nor to the world of the author). “This relation of text to text, within the effacement of the world about which we speak, engenders the quasi world of texts or literature. . . . Words cease to efface themselves in front of things; written words become words for themselves” (Ricoeur 1991: 109). For Ricoeur, interpretation of this imaginary world of the text moves in two directions. As readers we can explain the “internal relations” of the text by situating ourselves in the “closure” of the text, which “has no outside but only an inside;…has no transcendent aim, unlike a speech that is addressed to someone about something” (Ricoeur 1991: 113). Or we can seek to understand the text through an act of appropriation, which Ricoeur defines as “the interpretation of a text [that] culminates in the self-interpretation of the subject who thenceforth understands h[er]self better, understands h[er]self differently, or simply begins to understand h[er]self” (Ricoeur 1991: 118).
What might this approach to narrative texts and interpretation imply for the possibility of the intercultural reinterpretation of rights? Creation stories might “disclose” to non-Aboriginals a different way of relating to and experiencing their relationship to the natural environment; it might move non-Aboriginals to take up a re-enchanted relation to the objective world as a matter of lifestyle; these stories might move non-Aboriginals to adopt or imitate what they take to be Aboriginal folkways (as an act of love or theft or both). Or, more generally, the aestheticization of life portended by such stories might find an analogous critical example in the Dadaist and Surrealist intention to bring art out of the museum and back into life. But such stories would seem to have little to offer with regard to disclosing empirical truth about the objective world of property relations. If the distinction between historical discourse (that has an empirical referent) and narrative discourse (that has an imaginary referent) is not made, then there would be no way to distinguish, for instance, between Thomas Dixon’s novel The Klansman and W. E. B. DuBois’ historical account of Black Reconstruction in America as factual evidence about post-civil war life in the American South.
In other words, narratives (stories) might offer a form of persuasion regarding imaginary worlds, which might be evaluated according to culturally diverse aesthetic standards for world disclosure, but they would seem to lack persuasiveness regarding either the objective world or the shared social world. At least it would appear questionable whether they could withstand critical scrutiny. In the case of Delgamuukw, this would make the inclusion of such stories a procedural concession that does not guarantee a favorable outcome; and it is worth noting that the Canadian Supreme Court did not decide whether the Aboriginal stories were in fact a persuasive legal argument; it only ruled that such stories could not be excluded as forms of evidence. Therefore, it might be premature to describe this ruling as a model of intercultural democracy. However, given the account of narratives and interpretation by White and Ricoeur, intercultural democracy might better be construed as entailing the mutual appropriation of cultural practices among Aboriginals and non-Aboriginals, and the recognition of such appropriations as transformative for the self-understanding (or identity) of both the participants and their cultures. Intercultural democracy would then entail facilitating choice among cultural identities, the creation of new identities, and the equitable distribution of symbolic and material resources that facilitate practical recognition: that is, the institutionalization of identities in the public sphere.
2. The Hermeneutics of Suspicion
Having defined intercultural recognition in this way, as an instance of symbolic democracy, I want to briefly consider the broader implications of the relationship between cultural recognition and methods of critical reasoning by defending the relevance of a hermeneutics of suspicion for any critical theory of cultural recognition.
First, the institutional domains of the public sphere and the law are not identical; the difference between the two has implications for the politics of recognition. One of the strengths of existing liberal democracy as an ethic project is its cultivation of a finely tuned awareness that public policies enable some actions and constrain others; and that the unintended side effects of normatively worthy projects and policies should be assessed in order for some level of democratic responsibility and accountability to be present. Standards for adjudicating rights claims in the legal domain are and should be higher than standards for coming to consensual agreement in the diffuse settings of the public sphere because the outcomes of legal decisions affect third parties that are not part of specific cases. In other words, the domain of law, as a socially differentiated institution, should not be assimilate into the public sphere or the lifeworld. (Conversely, Habermas [1996: 301-302] has argued against the application of deliberative democratic procedures to the whole of society: “The normative self-understanding of deliberative politics certainly requires a discursive mode of sociation for the legal community, but this mode does not extend to the whole of society in which the constitutionally organized political system is embedded. Even on its own self-understanding, deliberative politics remains part of a complex society, which, as a whole, resists the normative approach practiced in legal theory. […] In this regard, the discourse-theoretic reading of democracy has a point of contact with a detached social-scientific approach that considers the political system neither the apex nor center nor even the structural core of society, but just one action system among others. […] What is more, deliberative politics is internally connected with contexts of a rationalized lifeworld that meets it halfway.”).
Second, the politics of recognition is compatible with the hermeneutics of suspicion employed by critical theories (whether deconstructive, psychoanalytic, or social democratic). Interpretive vigilance with respect to unintentional forms of bad faith – like unrecognized forms of power embedded within otherwise good intentions – remains a important task of critical thinking. On this account, Habermas’s deliberative political theory remains a critical theory since, in his model of discourse ethics, validity claims that are grounded on the economic or cultural authority of the speaker, or the assertion of a privileged access to the truth on the basis of such authority, would be open to discursive challenges. Even when cultural recognition is at stake, I would argue that reason does not demand that a democratically constituted citizenry must accept the identity claims, claims of cultural authenticity, or assertions of privileged access and means to historical truth of any individual or group at face value.
Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: MIT Press, 1996)
Jürgen Habermas, “Discourse Ethics: Notes on a Program of Philosophical Justification,” Moral Consciousness and Communicative Action (Cambridge: MIT Press, 1990).
Angelia K. Means, “Narrative Argumentation: Arguing with Natives,” Constellations 9, 2 (2002): 221-245.
Paul Ricoeur, “What is a Text?” From Text to Action: Essays in Hermeneutics, II (Evanston: Northwestern University Press, 1991).
Hayden White, “Narrativity in the Representation of Reality,” The Content of the Form: Narrative Discourse and Historical Representation (Baltimore: Johns Hopkins University Press, 1987).
Jon Elster has written incisively on the varieties of political theory that draw their principles selectively from the institutions of the “forum and the market.” Social choice theory conceives of political action as instrumental and private; the Habermasian theory of the public sphere views politics as aiming at rational agreements among participants within a consensual public; participatory democratic theory understands politics as entailing a “transformation and education of the participants.” (Elster 1986, p. 103) In the democratic political imaginary, either institutional framework, the public sphere or the bazaar, could provide the basic principles, motivations and outcomes of what might purport to be socially just. My interest in the forum as a model of the political lies in understanding how power is conceived to operate within this space of social interaction. The most influential (and controversial) model of the forum is Habermas’s concept of the “public sphere,” a space of public political life based on the normative principle of the honest exchange of ideas. (Habermas 1974; 1989) The idea of such an arena of coercion-free discussion has been criticized for idealizing a “bourgeois” model of political discussion and civility at the expense of a ‘gendered’ understanding of this space and the delegitimation of working class and non-bourgeois forms of public political life. (See Ryan 1992; Eley 1992) However, what initially recommended this model of democratic politics was less a concern for efficiency or justice than the potential it held for attenuating what had come to be considered illegitimate conditions of the exercise of power (authority).
In the eighteenth-century, the forum (a space of free exchange of political ideas) offered critical vantage points from which the forms of power and the institutionalization of authority typified by the “Absolutist State” were challenged. Reinhart Koselleck’s discussion of the “initial situation” of the modern concept of the political provides insight into the philosophical discourse of sovereign power. His study of the crisis of political authority, which elaborates Carl Schmitt’s thesis concerning the crisis of modern sovereignty, reconstructs the “political situation of the bourgeoisie in the Absolutist State.” (Koselleck 1988, p. 6) The “utopian” and “hypocritical” character of the Enlightenment is rooted, he argues, in the fact that its proponents conceived it as a refusal of political power.
The structure of Absolutism, which was rooted in the dichotomy between sovereign and subject, between public policy and private morality, prevented the Enlightenment and the emancipation movement produced by it from seeing itself as a political phenomenon. Instead the Enlightenment developed patterns of thought and behavior which, at the latest from 1789 onwards, foundered on the rocks of the concrete political challenges that arose. (Koselleck 1988, pp. 1-2)
While Koselleck views this political weakness of Enlightenment political philosophy as the source of successive historical episodes of Terror (French, Soviet and National Socialist), I will focus on his specific insight into the Enlightenment aversion to (political) power. The self-conception of Enlightenment critics of absolutism as representatives of universal (moral) standards of reason lead the emergent definition of enlightened politics to be understood as diametrically opposed to the Realpolitik of the State. As the only legitimate source of political authority, the Absolutist State was conceived as the ultimate expression of power which was deemed illegitimate from the standpoint of enlightened reason.
The Enlightenment critics understood the political as an immoral space of royal action. This sensibility was produced by the sociohistorical development of the Absolutist State. Against the backdrop of religious warfare, “the princely State […] developed a supra-religious, rationalistic field of action. […] This realm found its theoretical expression in the doctrine of raison d’état. What was made room for here was an area where politics could unfold regardless of moral considerations.” (Koselleck 1988, p. 16) An ethically neutral sphere of action sealed the State off from the demands of religious fractions. Cuius regio eius religio affirmed the subordination of these fractions to the Prince. The doctrine of raison d’état took root among the absolutist monarchies of the Continent as well as the parliamentary government in Britain.
By demarcating a symbolic boundary between the publicness of politics and the privacy of conscience, reason of state demanded obedience to a strict logic of self-preservation. The most important political task of the prince was the maintenance of state sovereignty above and against internal and external threats. The most representative work articulating the logic of self-preservation, Machiavelli’s advice to the modern Prince (c. 1513), achieves great clarity on the obligation of self-preservation and the means to fulfilling it. Machiavelli suggests that while faith and honesty are praiseworthy qualities in a ruler, “one sees by experience in our times that the princes who have done great things are those who have taken little account of faith and have known how to get around men’s brains with their astuteness; and in the end they overcome those who have founded themselves on loyalty.” (Machiavelli 1985, p. 69) Distinguishing between “two kinds of combat [laws and force],” Machiavelli goes on to illustrate the fact that “the first is proper to man, the second to beasts; but because the first is often not enough, one must have recourse to the second.” (Machiavelli 1985, p. 69) The “prudent lord” does not observe faith, for he/she recognizes that because men “are wicked and do not observe faith with you, you also do not have to observe it with them.” Hence, a concern with moral goodness is the least likely quality of the successful prince.
[…] A Prince, and especially a new prince, cannot observe all those things for which men are held good, since he is often under a necessity, to maintain his state, of acting against faith, against charity, against humanity, against religion. And so he needs to have a spirit disposed to change as the winds of fortune and variations of things command him, and as I said above, not depart from good, when possible, but know how to enter into evil, when forced by necessity.” (Machiavelli 1985, p. 70)
Machiavelli can be read as counseling merely duplicitous and expedient political behavior at the expense of honest, virtuous action only if the primary good, the preservation of the State, falls out of view. The recommendation to the prince to “enter into evil” when necessary is not prescribed as an end in itself, but rather is offered as a means to efficacious sovereignty.
In the second half of the seventeenth-century, Hobbes – in the midst of civil war – articulated with great depth the predicament of moral conscience for political sovereignty. Unlike Machiavelli, whose analysis of conscience remains at the level of the prince, Hobbes located the problem of moral conscience within what had become an uncivil society. On Koselleck’s account, rather than being a cause of peace (causa pacis) or the general good, Hobbes considered the “authority of conscience in its subjective plurality” as a “causa belli civilis.” (Koselleck 1988, p. 29) The war of subjective moral consciences, which devolved into self-righteous posturing and, hence, undermined their own moral presuppositions, could be surmounted only “beyond the traditional realm.” As Koselleck argues, “the need to found a State transform[ed] the moral alternative of good and evil into the political alternative of peace and war.” Therefore, “the subordination of ethics to politics” typical of Machiavelli “was thematically pointless for Hobbes, since reason removes whatever difference may exist between the two domains.” (Koselleck 1988, p. 25)
At the base of the Hobbesian conception of the political is the doctrine auctoritas, non veritas facit legem (authority, not truth, makes the laws). Koselleck summarizes the core premise of this doctrine: the Hobbesian State deprives private opinions of any political status and the “public interest” becomes the domain of the sovereign alone. By alienating conscience from the state, the former is transformed into “private morality.” (Koselleck 1988, p. 31) The highest moral good is not coterminous with traditional morality, but rather is associated with the morality of “political reason.” Hence, the “ruler’s absolute political sovereignty” stands as a “moral necessity” for the various communities of consciences. The philosophico-moral conditions of possibility for this alignment of morality and politics is the potential state of civil war: “It is only in respect of civil war, and of reason’s supreme commandment to put an end to this war, that Hobbes’s system becomes logically conclusive.” (Koselleck 1988, p. 33)
In Hobbes’s political philosophy, ratio itself is placed in the service of voluntas. Sovereign will alone creates the possibility of perpetual peace. Koselleck notes that the “rationally construed State” in Leviathan is not the “pure ‘state of reason’” that would appear in the eighteenth-century. Rather, “reason thus creates a neutral zone of State ‘technology’ in which there is no law but the prince’s will.” (Koselleck 1988, p. 33) Morality sustains this technology only as a bulwark against civil war. The political morality of Leviathan is expressed in the purely formal command to end the bellum omnium contra omnes, to preserve civil society. A century later, such conditions no longer sufficed as a reasonable defense of raison d’état, for “to the extent which this initial situation, the religious civil war to which this State owed its existence and its form, was forgotten, raison d’état looked like downright immorality.” (Koselleck 1988, p. 39)
It would appear ironic that Hobbes, who is normally treated as the architect of Absolutism, articulated the very logical conditions under which Absolutism would be rendered powerless in the eighteenth- and nineteenth-centuries. Yet Koselleck pursues this fruitful reading in his analysis of Locke’s reconstruction of the Hobbesian distinction between conscience (morality) and the political (the State). In An Essay Concerning Human Understanding, John Locke elevates what were no more than private opinions for Hobbes to the level of moral laws: “In Locke’s mind, the citizens’ views about virtue and vice no longer remained in the realm of private opinion; rather, their moral judgements themselves had the character of laws.” (Koselleck 1988, p. 55) This essentially bourgeois morality was now seen to be borne by society, which no longer was required to render absolute obedience to the State. Accordingly, the “citizens themselves do what Hobbes reserved for the sovereign: they set ‘the mark of value’ of all acts ‘and give the name of virtue to those actions, which amongst them are judged praiseworthy, and call that vice, which they account blamable.’” (Koselleck 1988, pp. 55-56)
Locke’s political conception of public morality had the effect, in Koselleck’s view, of breaking the bond between self-preservation (the moral charge of the protection of civil society) and obedience which was the backbone of Hobbesian Absolutism: “Morality was no longer a formal matter of obedience, was not subordinated to the politics of Absolutism, but confronted the laws of the State.” (Koselleck 1988, p. 58 [emphasis added]) The main import of the opposition of “civic morality” and the political authority of the State was the draining of ethical content from the actions of the sovereign. However, whereas Locke strove for a “co-ordination” or “juxtaposition” of morality and politics, the bifurcation of politics and morality was radicalized in the Republic of Letters and Masonic lodges of the eighteenth-century. (Koselleck 1988, pp. 60, 62) As a critic of the Enlightenment’s undermining of the legitimacy of political authority, Koselleck describes precisely the effects of the public censure of society on such authority: “In the eyes of the hypocritical proponent of Enlightenment power is identical with the abuse of power. […] In the view of the political privateer power becomes force.” (Koselleck 1988, p. 119)
The openness of public opinion contrasted sharply with the reason of state, closeted in royal cabinets. Forms of authority that could not be subjected to and also withstand the moral criticism of a rational public appeared arbitrary. The opposition between ratio and voluntas, those sources of decision that had been reconciled in the Hobbesian framework, provided the basis not only for emancipatory project of the bourgeoisie, but also a conception of political power as immoral.
Jon Elster. 1986. “The Market and the Forum: Three Varieties of Political Theory.” Pp. 103-132 in Foundations of Social Choice Theory, edited by Jon Elster and Aanund Hylland. Cambridge, UK: Cambridge University Press.
Geoff Eley. 1992. “Nations, Publics, and Political Culture: Placing Habermas in the Nineteenth-Century.” in Habermas and the Public Sphere, edited by Craig Calhoun. Cambridge, Massachusetts: MIT Press.
Jürgen Habermas.  1989. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, translated by Thomas Burger. Cambridge, Massachusetts: MIT Press.
Jürgen Habermas. 1974. “The Public Sphere: An Encyclopedia Article.” New German Critique 3: 49-55.
Reinhart Koselleck.  1988. Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society. Cambridge, Massachusetts: MIT Press.
Niccolò Machiavelli. 1985. The Prince, translated and introduced by Harvey C. Mansfield, Jr. Chicago: University of Chicago Press.
Mary P. Ryan. 1992. “Gender and Public Access: Women’s Politics in Nineteenth-Century America.” Pp. 259-288 in Habermas and the Public Sphere, edited by Craig Calhoun. Cambridge, Massachusetts: MIT Press.
Locke’s “takings” rendered a godly act, misunderstood by poor Marx as “primitive accumulation.”
Such beautiful little stories that natural rights philosophers tell themselves:
He that is nourished by the Acorns he pickt up under an Oak, or the Apples he gathered from the Trees in the Wood, has certainly appropriated them to himself. No Body can deny but the nourishment is his. I ask then, When did they begin to be his? When he digested? Or when he eat? Or when he boiled? or when he brought them home? Or when he pickt them up? And ’tis plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and the common. That added something to them more than Nature, the common Mother of all, had done; and so they became his private right.
John Locke, Two Treatises of Government. Second Treatise, § 28.
Acorns, Apples, and Trees: Mother Goose has nothing on this.
As far it goes in the natural rights genre, Hobbesian horror stories are preferable to Lockean nursery rhymes. In the apparently empty forest, Hobbes’ wolf-man would be justified by right in ripping out the stomach of Locke’s gentle-man hunter and gatherer in order to gain access to its contents. The wolf’s bite proves superior to the quaint bit about “labour.”
My particular position on Hobbes versus Locke is that I side with the logical argument presented by Hobbes (which has nothing to do with ‘might makes right’). Hobbes argues that in the “state of nature” all “men” have a right to everything, a condition that leads to the bellum omnium contra omnes. In other words, in the state of nature, theft, rape, murder, etc. cannot be condemned since there’s no basis for condemnation: anything goes. Why do I find Hobbes more compelling? Because I think one can more easily bring his account of natural right into touch with empirical reality than Locke’s. Hobbes is more of a realist, is attuned to power relations, especially those connected to any claims of rights. He also has a pretty good idea about what the modern State enables and constrains.
“Nature has given each man a right to all things. That is, in the pure natural state (*), or before men bound themselves by any agreements with each other, every man was permitted to do anything to anybody, and to possess, use and enjoy whatever he wanted and could get. The argument is as follows: whatever anyone wants seems good to him precisely because he wants it, and it may either contribute to his preservation or at least seem to do so (and in the last article we made him the judge of whether it really does so or not, so that whatever he judges necessary is to be deemed to be so)…
*In the pure natural state, etc.] This must be understood as meaning that nothing that one does in a purely natural state is a wrong against anyone, at least against any man. Not that it is impossible in such a state to sin against God or to violate the Natural Laws. For injustice against men presupposes Human Laws, and there are none in the natural state… I will compress the argument and enable it to be taken in at a glance. Each man has a right of self-preservation (by article 7), therefore he also has the right to use every means necessary to that end (by article 8). The necessary means are those that he shall judge to be so himself (by article 9). He therefore has the right to do and to possess everything that he shall judge to be necessary to his self-preservation. In the judgement of the person actually doing it, what is done is rightly done.” Hobbes, On the Citizen (De Cive), I: 10
“The first law of nature (the foundation) is: to seek peace when it can be had; when it cannot, to look for aid in war (auxilia belli)…
The first of the Natural Laws derived from this fundamental natural law is that the right of all men to all things must not be held on to; certain rights must be transferred or abandoned. For if each man held on to his right to all things, it necessarily follows that some men would be attacking and others defending themselves, and both by right (for each man strives by necessity of nature to defend his Body and whatever is necessary for its protection). War would ensue. Anyone, therefore, who does not give up his right to all things is acting contrary to the ways of peace, that is, contrary to the law of nature.” Hobbes, On the Citizen (De Cive), II: 2, 3
There are complications, of course. Hobbes is writing against the background of the wars of religion (which are his “state of nature”) in England. Consequently, later authors such as Koselleck (Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society) have criticized him for denuding the State (Leviathan) of any moral basis, and allowing Locke’s model of “public opinion” to lay claim to morality in opposition to a State which is based solely on a “force” (voluntas, Willkür) that is arbitary. I find this to be a problem of the natural rights tradition itself, not something peculiarly screwy about Hobbes. Better to start from a position that holds that some external structure is always already shaping and defining the individual (as this is empirically observable) than to build a theory of political order from a fictional point zero at which natural individuals, laden with a set of rights that can only be the product of an external, enabling structure, contracted to become political individuals; that is, individuals taking part in a civil society.