INTRODUCTION
According to John Stuart Mill “The state of nature that precedes civilization is where originality resides” [1] and “the society leaves its individuals to their own devices as long as they do not harm others.” [2] But what really is the state of nature? Moreover, why this idea as it was presented by the theorists never played its real role in practice? Was the state of nature that chaotic that people choose to have a superior, rather than being free from any obstacles? Were people afraid of their fellow human beings as Hobbes insinuates?
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I am working on the topic of the state of nature in the modern society, because I want to find out if there is still a state of nature in the 21st century, for example in the indigenous societies, or that is some kind of social contract or anarchy. I am doing this in order to understand how people today live and if the basic human rights, as are the right of life, the right to liberty and security, the right of freedom etc., respected in those societies.
In this paper, I will try to analyze why despite the overall technical and technological progress, the cultural development, the democratic values that we stand for and the globalization of the countries in the world, yet in some parts of Planet Earth we can meet the remnants of what Rousseau, Hobbes and Locke call ‘the state of nature’. These societies living in the state of nature are trying to tell us that not always rule of law is needed; not always people need government to live proper and in peace. The world never was, and never will be without number of people living in that state, the state of nature. If we only look at the examples of many Indigenous people round the Globe, we can see that people can live without legally established government, without constitution and without laws, and still respect each other and live in peace. This is contrary to Hobbes’s claims that people in the state of nature cannot live just because homo homini lupus est. [3] So the need for social contract is not really a need. We can observe that sometimes the human nature is egoistic, wolfish and greedy: what is mine is mine, and what is yours I want to be mine. That is a result of population growth, the limitation of the resources, the enrichment of certain class of people and the innovations and development of the world. Contrary to this, that is not the situation in many undeveloped African tribes, as I will show later in the paper.
In the first chapter of this paper, I will expose the main ideas of Thomas Hobbes, John Locke and Jean Jacques Rousseau and their picture of the state of nature. Following, in the second and last chapter, I will try to find out if there is a state of nature in the 21st century. As an example, I will be taking the Indigenous peoples and their structure of society and their development. Furthermore, I will discuss the significance of the human rights that these people have and the way they manage to exercise them in the world they live in.
There is a lot to say on this topic and there are a lot more examples on this subject, but due to limited time and resources, I will keep my research and my analysis short and within these frames. My research is contained mostly from research of the main theories or Hobbes, Locke and Rousseau, relevant articles concerning the state of nature, articles concerning the life and the society of the indigenous peoples (primary and secondary sources).
1. WHAT IS STATE OF NATURE?
There are many definitions on what is “state of nature”. According to Hobbes: “The state of nature is a state of incessant mutual exploitation, all individuals seeking to dominate one another and to acquire honor and profit (fame and fortune)”. [4] Many encyclopedias consider the state of nature as “uncivilized and uncultured condition”, [5] a “wild primitive state untouched by civilization”. [6] State of nature is described also as a condition before the introduction of the rule of law, and as a state where there are no rights but only freedoms. In such a world where there are no laws, government, power, the people are in a natural condition of humankind.
Nevertheless, the state of nature in its true form [7] never existed in human society. Perhaps as a state of nature we can take the examples of the emergence of human society when man was savage and lived in hordes. The human at that point of development was not aware of anything, except livelihood and survival. People acted free from all restrictions and pressures. They showed their true existence and the desire to own fulfillment. As creatures of that kind, all people were and are equal by their nature. At that stage, “all people without restriction tend to insure and optimize their own fulfillment, then this unlimited competition lead to a state of complete uncertainty and danger.” [8] Moreover, “they consider themselves indispensable for the elimination of this tendency to establish a state of security and peace by entering in a civil society.” [9] Many of the Enlightenment theorists claim that the state of nature existed in the human society, but man came out of that state because he was afraid of the other humans, [10] considering that in the state of nature dominates social chaos and in order to protect himself the human was obliged to conclude the “social contract”.
With this contract individual’s freedom of self-fulfillment was restricted, so that individual freedom of all can exist together. “Everyone gives up their unlimited right, accepts limitations and with that accept the security and the peace in coexistence.” [11] Everyone has the natural right of personal fulfillment. This right of personal fulfillment “cannot be abolished because it would mean the destruction of livelihood.” [12] However, it may be restricted and in that way can exist in parallel with the other inalienable rights of all people. The restrictions are codified in legislations. Following, these restrictions were the basis of the doctrines of the Enlightenment thinkers Hobbes, Locke, Rousseau, Hume. [13] They created “‘the laicism’ of governing and new political legitimacy of any fair ruling – to be extracted from the social relations and based on respect of human’s rights.” [14]
1.1. State of nature according to Thomas Hobbes
Hobbes believed that human beings in the state of nature would behave “badly” towards one another. [15] He believed that such a condition would lead to a “war of every man against every man” [16] and make life “solitary, poor, nasty, brutish, and short.” [17] He was strictly against the state of nature because as he said, there can be nothing worse than a life without the protection of the State, [18] especially since in this state there is no justice because there is no law.
Hobbes argued that there are no human rights in the state of nature. [19] People have natural right to do anything to preserve their own liberty or safety, and by this implies they act savagely to each other by trying to preserve their own life. This is very arguable nowadays. Every human simply by just being human is entitled with rights when born, despite on what level of development he is in, or if he is aware of the existence of human rights. For Hobbes, natural right is the human freedom to manage himself in relation to issues of his own self – preservation. The man, in this capacity has an inalienable dignity, because “he is a goal for himself and a kind of ‘absolute value’ (man as imago dei)”. [20] This term has its roots in Genesis 1:27, wherein “God created man in his own image. . .”, [21] which does not mean that God is in human form, but rather, that humans are in images of God in their moral, spiritual, and intellectual nature. [22] “The moral implications of the doctrine of imago dei are apparent in the fact that if humans are to love God, then humans must love other humans, as each is an expression of God”. [23] This means that people are obligated to respect one another, but according to Hobbes at the end the ‘wolfish nature of humans’ [24] dominates.
Hobbes develops the way out of the state of nature into civil government by mutual social contracts. Only by concluding the social contract man can save himself and become just (in this State there is no room for the unjust). He says that “only the fear of death can lead to the creation of a State”. [25] This saying in the modern world was a reason for many wars. Many rulers, dictators, tyrants, for example as Hitler did with Germany in the Second World War, were guided by Hobbes’s ideas that the man is obedient of the State and should delegate his rights to the Sovereign because the Sovereign is sinless and just, thus has “the unlimited powers of rule and punishment.” [26] The ruler’s will define good and evil for his subjects. The ruler can do no wrong, because “lawful and unlawful, good and evil, are expression of the will of the ruler”. [27] Hobbes gives authorization to the ruler to kill everyone who disobeys this will. In other words, the ruler is always right, because he has god given rights and is messenger of God, so if someone does any wrong (which will mean opposite to the ruler’s wishes) he will lose his life. This contradicts with one of the basic human rights [28] – the right to life. It is not that there should be no State rules and regulations and that people should live in total anarchy, but rules that are in line with people’s rights, wishes and desires, for example regulations brought due referendum, which is a true expression of people’s will and democracy. Therefore, Hobbes, despite the ‘pretty’ picture he has in mind of people being safe by concluding the social contract, is neglecting the basic human rights. [29] Moreover, Hobbes’s social contract was in favor of the ruler, not the people.
1.2. State of nature according to John Locke
Locke holds different position compared to Hobbes. He believes that people could live in a state of nature, and life would be possible even without the legally established government. The state of nature for him is “pre – political, but not pre – moral”. [30] Furthermore, this state of nature for him is a state of complete freedom where all people are equal and only “bond by the law of nature”. [31] He worries that an absolute sovereign, with absolute power, would be even more of a danger to us than life in the state of nature. This is positive in Locke’s thought because is better to live in a state of nature where you live in complete freedom without limitations of the personal rights and liberties. On the other hand, giving the absolute power to a sovereign means that people have to obey the wishes and the demands of the ruler, rather than following their own needs and desires, and disobeying those demands leads to penalization. Why would someone want to have limited human rights? Why would someone want someone else to pressure him in doing something that is against his opinion and his beliefs? It is not the case of not having rules at all but rather that the rules should be made from the people and for the people. The people should not feel oppressed if they do something that is against one’s will and feel scared of punishment if they do not meet those requirements. This is against the commonly accepted notion of democracy in which the individual is free in expressing his own will and making statements.
Locke argued that although “we do need a sovereign to settle disputes and administer justice, we must also set constitutional limits to the sovereign’s rule”. [32] “We have a right to rebel if the sovereign abuses our trust”. [33] Assuming that we were all honorable in all our dealings with each other, then the need for sovereign would not existed and we could have remain forever in the state of nature. [34] Is this asking for too much? On one hand it might be, because with no rules at all, people might have tendency to become more violent and even greedier towards others who have more than them (wealthier people). On the other hand, it might not be too much asking for. People behave decent when there is not big gap in equality and people do cooperate with each other in order to survive. Later in this paper, I will show examples of people living in a ‘state of nature’ with no government, no legislative, and still managing to live in peace with each other and with the rest of the world.
Another thing with which Locke differs from Hobbes is his view of the human rights. For Locke, human rights are rights that every human holds and they belong to all humans, and are inalienable, that is they are not transferable to anyone else. [35] If someone tries to restrict one man’s human rights for Locke that is equal to slavery. [36] He set forth the view that “the State exists to preserve the natural rights of its citizens”. [37] Moreover, if the State (government) fails to retain the natural rights of its citizens, than they are allowed to stand up to it and protest against. The same is today in most of the democratic countries, where people if not satisfied with the measures and regulations that the government lays down raise their voice and oppose them. Following this further, Locke does not see the state of nature as something bad as Hobbes does, and therefore, he claims that is better for the people to reject the particular government and to return to the state of nature, [38] than to live in an oppressed regimes.
Nevertheless, despite the ‘free man’ that Locke stands for, he still points out that people should engage in a social contract. He says that we should partially give up some of our rights, but not the right of life, liberty and property, [39] for impartial justice. Furthermore, the social contract cannot be concluded without the explicit consent of the people. “Property is the linchpin of Locke’s argument for the social contract and civil government because it is the protection of people’s property, including their property in their own bodies, that men seek when they decide to abandon the State of Nature”. [40] Locke’s property is pre- state institute determined by natural law and the property is a result of individual’s labor. [41] For him the right of property is a right to life, freedom and estate. [42] He connects the human’s/one person’s rights with having property; the one who does not own property does not have rights. [43]
1.3. State of nature according to Jean Jacques Rousseau
What distinguishes Rousseau from the other two theorists is his statement that in the state of nature man would act like savage, [44] “whose actions are primarily determined by immediate needs food, sexual satisfaction, sleep and fears only hunger and pain”. [45] However, the thing that distinguishes the savage from the animal is the “free will and capacity of self-improvement”. [46] For Rousseau is an exaggeration to say that the state of nature leads to ‘war of all against all’, as Hobbes said. According to him, the state of nature is peaceful and free of vice. On the other hand, he agrees with Hobbes and Locke that in the state of nature “man’s main drive is towards self – preservation”. [47]
Rousseau gives a general picture how would the life be in the state of nature, which resembles in a good way with the life that some African tribes have today. He says that the human in the state of nature acts similar to animal satisfying his basic needs. Furthermore, Rousseau gives a critique of the modern man vs. the natural man. He says that the situation of the natural man is better than the one of the modern man because the natural man is free of social norms, morals, obligations, and duties. [48] “Having no moral relationship or duties to other men and no subjugated inequality, natural man is better for himself and society”. [49] His actions are “neither good nor evil” [50] because he is “not bounded by social rules, which dictate how people should act and think towards each other and the world as a whole”. [51] According to that, man should not care much about other’s opinion of him or his actions. [52]
Certainly, according to Rousseau, “people are neither good nor bad.” [53] People are restrained in harming others by the compassion they have for their fellow humans and have “aversion to pain and suffering.” [54] In addition, Rousseau claims that “men knew neither vice nor virtue since they had almost no dealings with each other”. [55] Moreover, in his view “their bad habits are the products of civilization, the conditions of nature – forced people to establish the civil society.” [56] According to this, if man leaves the state of nature than he becomes corrupted and unjust. The modern world and the development of it are responsible for people’s depravation because the wish for self – improvement brought misfortune to people. Then why at all should human beings leave this state? On this, Rousseau says that despite the corruptive potential, the life in the society can bring the “possibility of a higher form of human existence”, [57] like cultural or technological development of the human itself and the society he lives in.
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When talking about the people’s/human’s rights, Rousseau points out that that the people have rights in the civil state that are sacred. Therefore, people agree to live in a civil society because that society will protect their rights. But is this a real reflection on what the reality looks like? If taken for example the dictatorship regimes, let’s say in Sudan, or as it was in Romania when Ceausescu was on power, the people were in a fictional social contract with the country, and the state did not meet its main duty: the protection of the individual that is not able to protect himself! Different from Locke, who stands on the position that the human has rights even without the existence of the state, [58] Rousseau does not says that the human can exist and just be in that kind of state. For Rousseau, the people only have human rights when engaged in a contract with the state. Here he contradicts himself. First, he says that the civil society corrupts the people, and then notes that human rights exist only when people engage in social contract with the state. Rousseau’s second point about the requirement of the people to conclude the contract in order to be ‘safe’ and in a possession of human rights is questionable. The second chapter of my paper will show that people that are not part of a civil society still have human rights and are free.
1.4. Analysis
Do we get any general picture of what the state of nature is from the perceptions of these theorists? Hobbes is the opponent of the state of nature. His opinion is that man could not survive in the state of nature – therefore there is the need of creating a State, by people engaging in social contract and the necessity of people giving up their rights to the Sovereign. On the other hand, Locke is more liberal when talking about the state of nature. For him people can indeed, live in this state in peace with each other. He does not support the State that limits the rights of humans and the absolute power of the Sovereign (as Hobbes does).
Rousseau is in between with his approach. According to him, the state is the only one that can protect the human and his rights. Contrary, he says that the civil society corrupts the person; the development of the society makes man more greedy and unjust. How is this possible? We should enter the social contract for the main purpose of protecting ourselves from others and be able to exercise human rights, but not to become corrupted by the same society. Is not this statement too contradictory and illogical?
!!!Finally, summing up all the ideas from these theorists, we can define the state of nature as freedom. A freedom of man to do whatever is his own will, but not damaging and delimiting other people’s rights and personality; freedom from restraints, restrictions and oppressions. In the following chapter, we can see that it is possible for people to live in this kind of state and not being threat to one another.
2. IS THERE A STATE OF NATURE IN THE 21st CENTURY?
Looking further than our own surroundings, we will find examples of people that live in a ‘condition’ that is completely different from the democratic, modern and technologically developed world. Those people live in harmony with nature. Although, the number of those people is very small due to the colonization period and the constant force of assimilation, the ones that succeed in keeping their culture and traditional way of life, help us understand that people can indeed live without rule of law and without engaging into social contract(s). Today, many of the Indigenous people in the world are under the law of the ones that colonized their land, for example the Aborigines in Australia, when colonized by the British were put under the British legal system, [59] but as Australia gained independence from the Crown, the Aborigines are under the Australian law. [60] Other examples where people still managed to keep their natural state are some African tribes that are not subject to the law of the State, like the Bushmen in South Africa who live in bands. [61] Following in this paper, I will elaborate more on these people and their way of life.
2.1. Indigenous peoples
2.1.1. Definitions on Indigenous
Defining Indigenous peoples can be very difficult. Whom do we put under the term Indigenous? There are many definitions. According to the special reporter on discrimination against Indigenous population from the United Nations Working Group on Indigenous Population, Mr. Jose Martinez Cobo
Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, by conquest, settlement or other means, reduced them to a non-dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly national, social and cultural characteristics of other segments of the population which are predominant. [62]
This definition was considered to be with flaws. Therefore, the UN Working Group on Indigenous Population decided to enlarge the definition by adding more criteria in defining the term ‘Indigenous’. In the first place, they added that as Indigenous people would be considered the ones who “are the descendants of groups, which were in the territory at the time when other groups of different cultures or ethnic origin arrived there.” [63] In addition, Indigenous are the ones who “because of their isolation from other segments of the country’s population have almost preserved intact the customs and traditions of their ancestors which are similar to those characterized as indigenous.” [64] Finally, in this group belong people who are, “even if only formally, placed under a state structure which incorporates national, social and cultural characteristics alien to their own.” [65] In 1986 one more criteria was added, and that was “any individual who identified himself or herself as indigenous and was accepted by the group or the community as one of its members was to be regarded as an indigenous person.” [66]
Another definition is provided by the International Labor Organization in the 1989 Convention on Indigenous and Tribal peoples, defines Indigenous peoples as those who are regarded as such “on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.” [67]
We can give lots more definitions on who and what Indigenous people are, but in the end, summarizing all this definitions, we reach a single conclusion that the Indigenous people are people that only differ by their origin and culture. In other words, Indigenous people enjoy human rights as all the other people do. Furthermore, this people, despite the stage of their development, and by development I mean mostly technical and technological development, generally stand for the common values of freedom and peace. Moreover, Indigenous people, “although often distinguishable by virtue of their race, language or religion, are a discrete group”. [68] To explain this in more precise way, I will be taking as an example two groups of Indigenous people, one is the Australian Aborigines and the other one is the Bushmen from South Africa. Although, both of these groups of people are considered as Indigenous, they are different in a way of their social structure, the way of life, their customs, laws etc. Later, I will point out that one of these groups is living in a kind of state of nature, with total equality among its members, while the other one was assimilated by the State that overruled them and obligated by the State’s legal system, notwithstanding that “Indigenous peoples are constantly exempt from laws, which may interfere with their tradition”. [69]
2.1.2 Examples of Indigenous peoples: Australian Aborigines and the Bushmen of South Africa
I decided to take these two groups of Indigenous peoples as an example because there is diversity between them in many ways, but still both belong to what goes under the term ‘indigenous’. Since the European invasion of Australia in 1788, the Aboriginal people have been oppressed into a world unnatural to their existence for thousands of years. [70] The British Monarchy invaded the Australian Aborigines during the colonization period; hence, they were put under the British legal system. After Australia’s independence changes were imposed, the Aboriginal people started the request for self-determination, because the government at the time tried to assimilate these people, and destroyed their land, with that their way of life and culture. Prior to the arrival of the colonists and the destruction of the homeland of the natives, the Aborigines lived in a ‘state of nature’. The Aboriginal lifestyle was based on “total kinship with the natural environment, everything they needed for normal and healthy life was already provided”. [71] They lived in tribes or clans and were “obligated by their own customs and inter clan ‘contract’.” [72] “No one had authority over anyone else in the sense of ruling them, but this is not to say that there were not leaders”. [73] The leaders were people who had personal qualities that others admire, and were considered as smart men, but “there were no elected leaders in Aboriginal society”. [74]
Today, the Aboriginal still live under their customs, but are also obligated to respect the State’s legal system, which limits some of their human rights, for example like the right to education and using of their mother tongue. [75] Therefore, the colonization brought disturbance of the peace of this people. Armed conflicts and lack of understanding from the ‘modern men’ resulted in killing of dozens of Aboriginal people and forcing them on different way of life. [76] The Aboriginal people lost most of their tradition and culture, and today most of them are living in the developed and modern world. Only few of the Aboriginal tribes can be found living in a state similar to the state of nature, though obliged by rule of law by the State in one way or another.
On the other hand, we have the Bushmen of South Africa that still live in conditions mostly similar to those before the ‘white men’ invade their land. Along with the arrival of the European settlers great disadvantages started. [77] In this period number of Bushmen was reduced, because they fought to death trying to survive due to limited resources (limited and abused by the settlers), or were captured and forced to slavery and eventually die of extortion. [78] Today, as it was in the past, the Bushmen population lives into groups that are called bands. [79] No leader or superior exists as a figure in the Bushmen band. That makes all of the members of the band equal, both male and female. [80] Thus, they are all equal in the making decisions, [81] and “govern themselves by group consensus”. [82] If a dispute arises and there is some kind of misunderstanding between the band members, they are resolved through discussions where all involved take part with argumentations until some agreement is reached. [83] However, the governments of many African states are trying to exile the Bushmen from their homelands and to assimilate them. For example, “In Botswana the government has intensified its campaign to drive the Gana and Gwi Bushmen off their ancestral homeland in the Central Kalahari Game Reserve by cutting off all water supplies”. [84]
Clearly, we can see that the modern nations and the modern men forced this Indigenous people in leaving the state of nature they used to live in. The colonialism destroyed this people’s way of life. It was not that people abandoned the state of nature because they started to feel intimidated by the others. On the contrary, these Indigenous peoples lived together in peace and in equality, with little resources available that were enough for them to survive. Today, the Indigenous people living in a state of nature are a slowly dying race [85] because of all of this; nevertheless, “the fact that they are still trying to maintain their existence is a proof of how perfectly their way of life is adopted to their natural surroundings”. [86]
2.2. Do indigenous peoples today enjoy the human rights like most people do?
According to the United Nations Declaration on the Rights of Indigenous peoples in Article 1: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental fr
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