Editor’s note: This is the 22nd essay by Middlebury College Professor Emeritus Victor Nuovo on the origins of western political thought.
How did civil society or the civil state begin? There is general agreement that a civil state is not a product of nature, but something made by human art, the art of politics. This is what Hobbes believed and affirmed in the memorable sentence that begins his great work, Leviathan:
“Nature (the Art whereby God made and governs the World) is by the Art of man, as in many other things, so in this also imitated, that it can make an Artificial Animal.”
The great animal that it then describes is the civil state; he likens its parts to the parts of the human body: sovereignty is its soul or vital principle; public officials are its joints; laws its sinews; rewards and punishments its nerves; and the welfare of the people, its chief business. He did not suppose that this act of creation happened only once, but many times over. It was ongoing and continuous. Locke agreed.
But if we human beings are mere animals, and civil states are artificial ones created by us, then the question arises: What is it about mankind and our circumstances that makes us want to make such things?
Remember that the civil state is only one of the many sorts of things created by human art, among them: clothing, houses, and all their furnishings, ploughs, the wheel, saws, axes, musical instruments, and lethal weapons. The will to survive is the general cause of all this creative activity. But there are others, including: having the means for living comfortably and well, convenience in meeting needs, efficiency in assuring our safety, and having at hand instruments of sheer delight to occupy our moments of leisure and to enhance our comfort.
What originally prompted mankind to create the civil state and how did it all come about?
Hobbes said it was to make peace, for the state of nature is a state of war, and, given our selfish and aggressive nature we are never free of becoming victims of it. To this end, it was necessary that a formal agreement or social contract be enacted between people, a union of wills, a civil society.
Locke agreed with the method, but disagreed on the reason. He did not believe that the state of nature is a state of war. To his mind, war is just one more thing that mankind has made, and, whether it be civil war or a war between nations, it presupposes the existence of states or nations. (Note: Locke’s account of the origin of civil society is given in The Second Treatise of Government, which bears the title “An Essay Concerning the True Original, Extent, and End of Civil Government.”)
Some interpreters of Locke believe that he had a softer and more sentimental view of human nature than Hobbes. They are mistaken. The Second Treatise is not at all sentimental. In fact, in some places, Locke’s remarks seem downright cruel. He differs from Hobbes regarding the place of law in the nature of things.
Locke reasoned that if the state of nature is a state of war, then it must be a totally lawless state, for war was considered to be absent of all law, hence the saying “All’s fair in love and war.”
But Locke believed this is impossible, for he was sure that every human being is a bearer of the law of nature, whose content includes the whole of public morality, especially keeping one’s word, for without that there could be no social contract.
According to Locke, the state of nature is one of perfect equality, in which all human beings are free “to order their Actions, and dispose of their Possessions, and Persons” as they please, without “depending on the Will of any other Man.” Yet they are always “within the bounds of the Law of Nature,” for human nature is endowed with this law, and in a state of nature every human being is not only a bearer of this law, but has executive power to apply it.
The law can be harsh: if anyone assaults me, I have the right to kill him; if a thief enters my house, I have the same right. And, Locke adds, if my condition is secure, I should consider it my duty “to preserve the rest of Mankind” and to do whatever tends “to the Preservation of the Life, Liberty, Health, Limb, or Goods of another,” if need be using the same harsh methods, treating thieves as one would dangerous beasts of the wild.
It is hard to distinguish this vigilante justice from the state of war of all against all. They are equally suited to the Wild West.  In Locke’s case, the reason for founding a civil state is to create an orderly administration of law, which is not so different from making peace.
But there are more important differences between Locke and Hobbes, which pertain to the notion of sovereignty. Hobbes believed that sovereignty properly belongs to governors, whether they are many or one. Locke disagreed; he located it in the people.
Hobbes maintained that those who rule, whether a monarch or a representative assembly, are above the law; for the law is an expression of their arbitrary will.
Locke, to the contrary, contended that rulers have an absolute duty to promote the welfare of the people, and in any case are just as much subject to the law as anyone under their rule. Monarchs who violate this rule by seeking their own advantage rather than the welfare of the people lose their legitimacy and become tyrants, and the people, every one of which is a bearer of the law, have the right to remove them.
But this right must be carefully defined. Locke did not conceive it as a right to revert to a state of nature, for the people who have once given their consent, directly or tacitly, to the formation of a civil society cannot dissolve that society. They can do no more than replace the government. Locke does not spell out the process, but he seems to imply something like a constitutional convention, enacted by the people through their special representatives, who would temporarily assume powers of government: executive, legislative, and judicial.   
Here, I think, the very idea of the rule of law comes into view with all its power, and we should pay close attention, for it seems today that members of our civil society have many grievances, some just, some unjust, but in either case their preferred method of dealing with them more often than not is to go outside the law and become instruments of violence and anarchy. It is like throwing out the baby with the bathwater.
So, here’s the problem. Given human nature, and its universal tendency to be corrupted by power, grievances must come. How are those who are aggrieved to seek redress within the rule of law?
Locke posed the problem, but failed to provide a reliable solution. I believe that the framers of the American Constitution provided one; so there is more to come.