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"The Law Written in Their Hearts"?: Rutherford and Locke on Nature, Government and Resistance
Richards, Peter Judson

Published: Journal of Law and Religion, Vol. 18, 1 (2002 - 2003), 151-189.


In a familiar passage, R.H. Tawney has spoken of the transformation of natural law in the 17th century – an age in which the concept of "Nature" came to "connote not divine ordinance, but human appetites, and natural rights were invoked by the individualism of the age as a reason why self-interest should be given free play." "Natural rights" replaced "natural law" in the context of an ongoing inquiry into the sources and limits of political authority. Central to this discussion remains the enigmatic figure of John Locke. A common refrain in the literature identifies Locke – that many-faceted "man in whose name the American Revolution was made, ... the man above all whom hysterical conservatives all over Europe would blame for the collapse of the Ancient Regime" – as, in addition, a religious thinker whose Christianity colors the entire fabric of his political philosophy; as, even more specifically, the "heir of puritan political theorists." In this vein, at least one writer has ventured to connect Locke with a now largely forgotten piece of 17th - century political theory, Lex, Rex, the work of puritan pastor, theologian and political controversialist, Samuel Rutherford. The general impression seems to be that Locke's Calvinist upbringing places him in a long line of Reformed Christian resistance theorists. On the other hand, Lex, Rex has been called "a deeply Thomistic book" for its close adherence to natural law principles in the scholastic tradition. As a mid-century restatement of the constitutionalist theory of resistance, occupying the shadowy borders between medieval natural law and modernist natural rights theories, Lex, Rex provides illuminating contrasts with Locke's hugely influential natural rights theory in the Two Treatises on Government. Both authors wrote, at considerable personal risk to themselves, during the constitutional and political upheavals of the Stuart monarchy – Rutherford, in the midst of the Scottish Covenanters' resistance to Charles I; Locke, in the tumultuous years that culminated with the Glorious Whig Revolution of 1688." Both writers sought to address the questions of political authority raised by their turbulent times. Both argued for limited government, and attempted to set conditions for the legitimate resistance to government. Both deemed natural liberty to be governed by natural law. Nevertheless, comparison reveals that the primary theological and philosophical dispositions of the two authors set them on divergent trajectories, notwithstanding some clear and obvious similarities in their positions on resistance. Thus Rutherford's much-neglected exploration of the contours of law and politics – set at the bloody crossroads of political theory and civil war, and a generation before Locke's treatises on government were published to vindicate the peaceful dethroning of the Stuarts – presents an interesting vantage point from which to consider the division to which Tawney referred. It is my contention that certain theological features of the Calvinist tradition, identified in the reading of Rutherford, reappear only to be transformed and reshaped in profound ways as Locke sets out his program in the Two Treatises. In part I of this article, after some introductory remarks to provide context, I examine the subtle differences between the natural law theories of the two writers. In Part II the discussion centers on the conceptions of human agency in these works. Part III examines the notion of the covenant as a source of government. Part IV offers some concluding thoughts on the comparisons traced here. The juxtaposition of the two writers, I believe, sets in bolder relief the significance of Locke's deliberate deviation from the Calvinist-Puritan tradition with which he is frequently associated. It shows also the extent to which his theological differences with that tradition assisted in the overall conception and unfolding of his political theory.

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