226 Notes - Locke [1]
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John Locke - 1632-1704
226 Notes - Locke [2]
Locke’s life in brief:
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Born of Puritan parents (1632)
Father fought in the civil wars, on the Parliamentary side (Cromwell’s)
studied philosophy and then medicine at Oxford
became personal physician to Lord Ashley Cooper, first Earl of
Shaftesbury
Exiled to Holland for some years under political suspicion
wrote on Human Understanding as well as on politics
A bachelor throughout his life; lived peacefully and had extensive
correspondence and conversation with the great intellectual people of the
time.
His First and Second Treatises of Civil Government (1690) are among the
most famous works on politics in the English language
He is considered the father of Political Liberalism (Classic variety)
Died peacefully in the house of another nobleman (1704)
226 Notes - Locke [3]
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Political Power:
“a Right of making Laws (with Penalties including Death)
- all this only for the Public Good”
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[Note the claim that it is a matter of a “right” - not a natural phenomenon; note
also that the “for the Public Good” bit is a debatable addition. We can take it
that rulers claim, and are pretty generally recognized as having the “right” to
make and enforce laws.
But whether they will really use it for “public good” needs to be discussed, not
just assumed.]
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226 Notes 3 - Locke [4]
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Locke’s State of Nature
- (1) “a State of perfect Freedom to order their Actions, and dispose of their
Possessions and Persons as they think fit - without asking leave, or depending
upon the Will of any other Man”
[Is this description, idealization, or normative?]
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- (2) “within the bounds of the Law of Nature”
Question: What is the force of these “bounds”? Does Locke mean that
people generally obey them?
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(3) “Equality”: all the Power and Jurisdiction is reciprocal (without
Subordination or Subjection)
[Note: if there are no political institutions, then can’t, by definition, be any
political ‘subordination’.
But what about within some nonpolitical organization?]
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226 Notes 3 - Locke [5]
• Why Hobbes is wrong about the State of Nature
• [according to Locke; but I think he’s right ...]
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How do they in fact disagree?
1. - Both agree that there is a “Law of Nature”.
What’s more, as we’ll see, that it’s the same as Locke’s in the end)
2. -> what they disagree on is whether this “law of nature” has any clout - that
is, whether people’s appreciation, such as it is, of the logic of this law is
enough to make them at least reasonably peaceable.
Hobbes says No, Locke says Yes.
3. JN says: That’s what Hobbes is wrong about
- he hugely underestimates two things:
(a) the power of “iteration” (continued future plays of PD etc)
(b) the power of morals - even if we don’t assume that morality is wired-in, as
Aquinas did....
226 Notes 3 - Locke [6]
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Analysis regarding (3) [that Locke’s right, Hobbes wrong, re s of n]:
For Hobbes, the main problem is with “covenant”
Covenant is the second of the following three Kinds of Transactions/Contracts
(analysis here due to DeJasay)
Type
Problem?
1. “Spot”
- not particularly
2. “Half-Forward”
- Yes
3. “Fully Forward”
- Somewhat, not much
Note: Contracts with Enforcers are of type (3). [That’s important!]
Many important human arrangements are of the first and third types; covenant
is important, but is by no means everything
[example: coordination games]
Important question: can we shore up covenant with fully-forward
arrangements, as hinted above?
226 Notes 3 - Locke [7]
• 3. Morality:
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Set of Rules with No Centralized Enforcement
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Everybody “enforces” (or better, ‘reinforces’, in the psychologist’s sense: negatively, by
calling people names, avoiding them in future; positively, by rewarding them,
complimenting them, etc.)
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Hobbes overlooked (or underestimated) the resources of morality.
And he needs morality anyway, as we saw.
Reasonable conclusion:
A State of Nature could probably function at least moderately well without a State. (This is
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- This changes the picture, for unless SofN is always Worse than Governed State, Hobbes’ argument
for the State doesn’t go through.
Locke’s characterization)
226 Notes 3 - Locke [8]
• Locke’s “Law of Nature”
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- our “bounds”:
“Reason, which is that Law, teaches Mankind that it has a Law of Nature to
govern it: “being all equal and independent, No one ought to harm another
in his Life, Health, Liberty or Possessions”
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Q1: Interpretation - Which is basic?
Answer: Liberty (= Possessions, including of oneself)
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Issues:
Life - when am I “harmed” in respect of ‘life’? Answer: when somebody deprives me of
mine against my will (which it normally would be)
[Locke thinks we have no right to commit suicide. Are we harming someone who wants
to commit it, and we prevent him?]
Health - when am I harmed in this respect? - when someone makes me sick (or injures
me)
Liberty - this is when people leave me alone, doing what I wish. I’m in charge...
Possessions - much more of this later. But note that I could give them away...
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226 Notes 3 - Locke [9]
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[Reminder]: Political Liberalism - government is to be exclusively
devoted to the common good - where that good is determined by the people
whose good is being promoted.
• [new]: Political Libertarianism: The view that our sole
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fundamental right is the right to liberty
(that is, the basic right to pursue our own interests, as we please - observing
this right on the part of all others.
Cf. Hobbes’ Law II: “That one be willing, when others are so too ... to lay
down this right to all things; and be contented with so much liberty against
other men, as he would allow other men against himself”
226 Notes 3 - Locke [10]
• Rights: Negative vs. Positive
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Rights in general:
Person A has the right, against person B, to do x = B has a
duty to restrict his activities in relation to A’s doing x at will, in ways advantageous to A
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Two different modes of restriction:
1. Negative: B must refrain from preventing/interfering with A’s doing x
-> Negative rights require others not to act in certain ways. They can be satisfied by
doing nothing (e.g. sleeping)
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2. Positive: B must do something to enable A to do x, if A can’t do x unaided (or by the
purely voluntary assistance of others)
-> Positive rights require that we do something
For Short:
Negative: right that others refrain
Positive: right that others help
- observing this right on the part of all others. Cf. Hobbes’ Law II.
226 Notes 3 - Locke [11]
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Example: The “Right to Life”
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Negative: Right that others not kill you
Positive: Right that others help keep you alive, if they can and you
wouldn’t otherwise be able to stay alive. - This could involve right to
Rescue, Medical Assistance, Food, Shelter ..
- necessarily brings up budget: How Much do we do for A?
- Negative has a natural budget: Zero - what we do for A may be Nothing.
(But if you really want to murder, rob, rape, cheat, etc., then compliance has a
cost: you forego such “benefits.” But this cost is variable - it all depends on
particular interests and temperaments.)
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226 Notes 3 - Locke [12]
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Priority of Negative Rights
Note that Negative without Positive makes sense (prima facie); Positive
without Negative does not. [Can I have the duty to cure you but no duty not to
kill you?? Negative rights in that sense are logically prior.]
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Lockean Rights: Life, Health, Liberty, Property
But positive or negative ones? Answer: basically negative.
- Self-Ownership the basic idea: YOUR life, YOUR health, YOUR liberty,
YOUR property
- These would be undercut by Locke’s Theological idea (“all children of God,
here at his pleasure”)
- That idea (as we saw in the case of Aquinas) is unacceptable.
- Can we reduce them all to one idea?
- Liberty = Property -- it’s the same idea: i.e., Libertarianism
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226 Notes 3 - Locke [13]
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Property rights = Right to do what you want [= Liberty] with item x
Consider the case where x = you. Say, your hands, your mouth, your brain
Liberty = doing what you want
-> Doing what you want is using things, viz., parts of yourself
[note: much more about Property, a few slides down....]
Locke’s Rights are Negative
- Why?
- Because positive rights inherently conflict with General Liberty Rights
- All rights restrict Liberty (that’s what they’re for). However, liberty rights
restrict it by the other person’s liberty
226 Notes 3 - Locke [14]
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Foundations: Why adopt the “Libertarian” view?
2 views:
(1) Hobbesian: each person is better off this way
(2) Theological/Metaphysical, etc.: some entity outside of ourselves wants us
to be that way. (But why would it? In the case where it’s not minded, what
does it even mean to say that it would??)
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1) The Hobbesian Foundational Argument for Locke’s view:
- Less restriction than the libertarian one is No restriction. At that point, socalled “rights” cease to be any benefit to anyone.
- Might more restriction than that be justified? No: any maldistribution of
liberty creates enemies - “Disharmony”. Hobbes’ First Law supports his
second one ....
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226 Notes 3 - Locke [15]
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NOTE: In Locke’s first Treatise (which we don’t read) he says:
“God hath not left one Man so to the Mercy of another that he may starve him
if he please: God ... has given no one ... such a Property ... but that he has
given his needy Brother a Right to the Surplusage of his Goods; so that it
cannot justly be denyed him, when his pressing Wants call for it.”
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This is at least prima facie inconsistent with the Law of Nature as Locke states
it....
How heavily does it depend on Theology???
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226 Notes 3 - Locke [16]
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The question of modern government: Can we do better with positive
rights?
- Positive rights impose costs on some (e.g., the capable, the productive, the
healthy, etc.) in order to benefit others (the unfortunate, the incompetent, the
unproductive, the sick, etc.) - and hence defy the 2nd Hobbesian “law”
- Contractarianism justifies this only if the benefit to yourself of having all
others obligated to supply you with those things more than compensates for
the cost to you of supplying it to them.
- for many, the likelihood of that is fairly low, especially if
- You make an agreement with some others (not all) to bind themselves to
supply it to you, say on condition that you do something for them (such as, pay
them)
226 Notes 3 - Locke [17]
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2) Locke’s answer: “Men are all the Workmanship of one Omnipotent, and
infinitely wise Maker” (All are “Servants of one Sovereign Master” - “his
Property” - “made to last during his, not one another's Pleasure
->Why this is the wrong answer:
- Note how the fact that God is supposed to be our “maker” is what makes him
our owner. But the law of nature says that the maker of x is the owner of x.
The law is prior to the alleged theological fact.
226 Notes 3 - Locke [18]
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A Side Note on Theology
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Theological arguments say:
(1) some fact about God
is such that
(2) some moral/political conclusion follows from it
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Question: does (2) depend on (1)?
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Answer: No.
226 Notes 3 - Locke [19]
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‘God’ = a (minded) being who is
(a) superduper Powerful, and
(b) superduper Good
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Why do we owe him obedience?
(i) always has the problem why anybody ever does anything god doesn’t
“want” him to, since by hypothesis god can do whatever he wants
(ii) in any case, no religious person will claim that the whole show is just a bit
of bullying by the universe’s SuperCop
(iii) Thus it has to be (c) that does the biz
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Re (c): the question is: in what does the goodness of god consist?
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226 Notes 3 - Locke [20]
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The answer has to be provided by the ethical theory of the believer
(Note: it can’t be provided “by god” because you have to know whom to ask
and the answer is, the guy with properties (a) and (b) above, getting you back
to square one.)
-> which leaves the question, what is it (the ethical theory of the believer)
founded on?
The answer has to be: something or other that has nothing to do with gods.
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conclusion: all religious appeals in ethics and politics are absolutely pointless
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226 Notes 3 - Locke [21]
• Punishment
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- Administering the Law of Nature
- in the State of Nature, every one has a right to punish the transgressors of
that Law to such a Degree, as may hinder its Violation (the Law of Nature
“would be in vain, if no body had a Power to Execute it”) [same as Hobbes]
Reparation and Restraint - the only reasons justifying punishment
Offenders are “dangerous to Mankind”; punishment is to protect us from them
- In addition to a right of punishment common to him with other Men, victims
have a particular Right to seek Reparation from offenders
- And any other Person who finds it just, may also join with him that is injured,
and assist him in recovering from the Offender, so much as may make
satisfaction for the harm he has suffered
226 Notes 3 - Locke [22]
• Punishment
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- Administering the Law of Nature: In the State of Nature,
“ every one has a right to punish the transgressors of that Law”
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Problems:
(1) it is unreasonable for Men to be Judges in their own Cases
(2) Ill Nature, Passion and Revenge will carry them too far in punishing others
(3) hence nothing but Confusion and Disorder will follow
• Locke’s argument for Government:
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Locke agrees, and concludes that: “Civil Government is the proper Remedy for the
Inconveniences of the State of Nature, which must certainly be Great”
226 Notes 3 - Locke [23]
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But the Hobbesian political solution is no good:
(1) Absolute Monarchs are but Men
(2) if Government is to Remedy those Evils, How much better than the State of
Nature is it if one Man ... has absolute power?
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To the same question we asked about Hobbes: were people ever in the “State
of Nature”, Locke replies that “..all Men are naturally in that State, and remain
so, till by their own Consents they make themselves Members of some Politick
Society”
226 Notes 3 - Locke [24]
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The State of War - “a settled Design, upon another Man’s Life”
1. The Fundamental Law of Nature -Man being to be preserved,
2. “destroying one who makes War .. is like killing a Lion” - Such Men are not
under the ties of the Common Law of Reason [= Hobbes]
3. If A tries to get B into A’s Absolute Power -> A makes war on B -> it is
Lawful for a Man to kill a Thief [so storeowners may keep guns to protect
themselves?]
(....and if a thief, then an Absolute Monarch)
4. >> The “plain difference” between State of Nature and State of War: (1)
Peace, Good Will, Mutual Assistance, Preservation - vs.
(2) Enmity,
Malice, Violence and Mutual Destruction
5. When the fighting is over, the State of War ceases in Society: “there is
remedy of appeal for past injury, and to prevent future harm”. But
> no such appeal in the S of N -- no Laws or Judges with Authority
... so War once begun, continues .. a “great reason” for Civil Society
[comment: Why?? Note, e.g., that international wars do end, often]
226 Notes 3 - Locke [25]
• Slavery
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Man is Naturally free ... with only the Law of Nature for his Rule
The Liberty of Man in Society, is to be under only Legislative Power,
established, by consent, in the Common-wealth
Freedom of Men under government, is, to have a standing Rule to live
by, common to all, made by the Legislative Power .. and A Liberty to follow
my own Will in all things, where the Rule prescribes not
[Is this trivial? If it isn’t covered by the law, it isn’t forbidden by it?]
-> But it’s not. The rule could be: Anything not allowed is forbidden. It’s only
the Liberal who says: Anything not forbidden is allowed!]
Freedom from Absolute, Arbitrary Power is necessary to Man’s
Preservation - who foregoes it, forfeits his Preservation and Life
226 Notes 3 - Locke [26]
• Property
• Defined:
• A Owns X = A has the right to do whatever A pleases with x
• A has the Right to do x -> Others may not interfere with A’s doing
x ... thus Property is the right to exclude).
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BUT (says Locke:) “God has given the Earth to Mankind in
common”
• [Q: How does Locke know this?
• A: because God is a good guy, right?
• Q: Why wouldn’t the “good guys” give it, say, only to the
• pool-players among us?
• Or the Jews? - Or everybody except the Jews? or ...]
226 Notes 3 - Locke [27]
• Property
• Locke’s Question: How, if it’s all Commons, can any one ever come
to have a Property in any thing? - one without “express Compact of
all the Commoners”?
• [‘commons’ is common property.
• Is it jointly owned?
• If so, use of it requires permission of all owners; hence all
“commoners”
• [And who are they? Notionally, everybody.
• Not, England for all the English, Belgium for all the Belgians - those
distinctions don’t exist in the State of Nature...]
226 Notes 3 - Locke [28]
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Locke’s answer:
a) Theological version: God gives us reason to make use of it to the best
advantage
b) Secular version:
(1) every person, A, has a Property in A’s own Person. This no Body else has
any Right to [By virtue of L of N]
(2) The Labour of A’s Body & theWork of his Hands are A’s.
(3) If A “removes x out of the State of Nature” and hath “mixed his Labour
with x”, then A has
(4) “joined to it something that is his own”
-> (5) and this makes x A’s Property
(Principle: “For this Labour being the unquestionable Property of the
Labourer, no Man but he can have a right to what that is once joined to”)
226 Notes 3 - Locke [29]
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>> That Labour put a distinction between them and common. That added
something -- so they become his private right
Question: Why? (Why does all of a thing that I added something to become
mine??)
Nozick’s Question:
“... but why isn’t mixing what I own with what I don’t own a way of losing
what I own rather than a way of gaining what I don’t own?
“If I own a can of tomato juice and spill it in the sea so that its molecules ...
mingle evenly through the sea, do I thereby come to own the sea, or have I
foolishly dissipated my tomato juice?”
[Anarchy, State, and Utopia, p. 175]
226 Notes 3 - Locke [30]
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Should we think that “the consent of all Mankind” was necessary to make
them his?
Locke claims not:
“If such a consent as that was necessary, Man had starved, notwithstanding the
Plenty God had given him”.
[See next slides: Without Property , the Common is of no use. ]
226 Notes 3 - Locke [31]
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Distributive Justice a la Locke [as deduced from his Law of Nature]:
Reminder: A owns x = A gets to do what he wants with x
1. Original Acquisition: x belongs to A if A uses x, where x is previously
unowned [Or: A makes x out of y, and y is previously unowned or A comes to
possession of y via (2)
2. Exchange: If A owns x and B owns y, A and B’s agreement to exchange is
sufficient [also gift]
3. Rectification: If A stole x from B, then B, C, D, ... may force A to return x
to B.
Note that just distribution on this view has nothing to do with (a)
needs, as such, or (b) proportions, such as equality
226 Notes 3 - Locke [32]
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Limits on Original Acquisition
1. May we take “as much as we will”?
Locke says no: “God has given us all things richly - But how far?
answer: To Enjoy.
= “As much as any one can make use of to any advantage of life before it
spoils”
“so much he may by his labour fix a Property in.” Beyond this, is “more than
his share”
But How much is that?? Consider the person who simply has to have six beach
condos - five won’t do .. Who would decide this?
[Liberalism’s is: “we” do. But that doesn’t settle the issue, for what should
“we” decide, when A and B disagree?]
226 Notes 3 - Locke [33]
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2. The “Lockean Proviso”: The foregoing is true, “... at least where there is enough,
and as good left in common for others”
Claim: “Nor was this appropriation [of land] any prejudice to any other Man, since
there was still enough, and as good left”
Questions about the The “Lockean Proviso”:
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[which says that the foregoing is true, “... at least where there is enough, and as good left
in common for others”]
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Questions:
1. Which others?
a) absolutely all?
b) Everyone in the near neighborhood?
c) In the future as well as the present?
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2. If the “amount” is finite, and (a) tends toward infinity, then nobody could have
anything
226 Notes 3 - Locke [34]
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3. What is the criterion of ‘enough and as good’?
-> same amount as A takes??
-> equally productive?
-> of what??
- all these answers are unanswerable
4. Are “natural resources” worth anything at all?
- if not, there is no distributive problem
- There is only the need to protect the liberties of everyone
- including the first comers whose rights are at issue
Locke notes that one acre of cultivated land in Sussex is worth 100 oro 1000 in “the
wilds of America”
The difference is due to labor
Question: might the difference made by labor be such that the “others” are better off by
virtue of A’s having exclusive ownership?
[answer: certainly!]
note: see Narveson, “The Lockean Proviso” on his website under “Essays” (not under
“Course materials”)
226 Notes 3 - Locke [35]
• The Commons: Why?
• X is a Commons if and only if there is a group, G, such that everyone
in it is a joint owner of X. Prima facie, nothing can be done to X
without the consent of every member of G. If “God gave the World to
Men in Common” , then all men are members of G, and X is the
whole world
• -> but “he gave it them for their benefit” - hence, for “the use of the
Industrious and Rational” -- not to the Fancy or Covetousness of the
Quarrelsome and Contentious”
• [How does Locke know that? Because God’s got such good taste?]
• >> Claim: subduing or cultivating the Earth, and having Dominion, we
see are joined together. “The one gave Title to the other.”
• [Note: If this is true, then is Socialism out the window?]
226 Notes 3 - Locke [36]
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>> Importance of Labor: “a thousand acres in the uncultivated waste of America ...
will yield the wretched inhabitants as many conveniences of life as ten acres of equally
fertile land in Devonshire where they are well cultivated ...”
“that of the Products of the Earth useful to the Life of Man 9/10 are the effects of labour
: nay .. in most of them 99/100 are wholly to be put on the account of labour”
[Make that 100%? Or is it a matter of percentages??]
Why the Earth is Not a Commons
>> We may not assume that “God” had anything to do with it
[as shown previously]
>> Moral rules are man-made
--> Nobody owns anything prior to human use and arrangements.
-> Natural Resources simply are -- they do not “belong” to anyone, in themselves.
[This follows from the point that morals is a set of rules among humans concerning their
actions in relation to each other.
Property rules privilege certain actions. The question is, which and why.
The idea that things are “just naturally ours” contradicts the basic Lockean/libertarian
idea: we are free beings, not beholden to others.]
226 Notes 3 - Locke [37]
• Money
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- a “lasting thing” that by mutual consent Men would take in exchange for the
truly useful, but perishable, Supports of Life.
- money gives them the opportunity to continue and enlarge them. ..
“It is plain, that Men have agreed to disproportionate and unequal Possession
of the Earth,
- they having by a tacit and voluntary consent found out a way, how a man
may fairly possess more land than he himself can use the product of”
The central idea of Classical Liberalism is that that’s enough to make it
OK!
i.e., that other people may not intervene with force to prevent or undo
exchanges meeting those conditions....
226 Notes 3 - Locke [38]
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Why is this “plain”??
[Or, as some critics (such as C. B. MacPherson) would claim, is it only bourgeois
Englishmen who have thus “agreed”?]
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Note that the central feature of money is that it is a medium of voluntary exchange
The idea is that Money got by force and fraud is not yours
All other exchanges employing money are prima facie legitimate
These exchanges ensure that
a) both parties are better off
while the Law of Nature requires that
b) nobody else is worse off
due to the exchange
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The central idea of Classical Liberalism is that that’s enough to make it OK!
i.e., that other people may not intervene with force to prevent or undo exchanges
meeting those conditions....
226 Notes 3 - Locke [39]
• Parental Power
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- Paternal = Maternal power (via Initial Acquisition)
- The Power of Parents over their Children - arises from the Duty to take care
of their Off-spring, during the imperfect state of Childhood
[Why???]
- To inform the Mind, and govern the Actions of their yet ignorant Nonage, till
Reason shall take its place ..
Law: the direction of a free and intelligent agent to his proper Interest,
- prescribes no farther than for the general Good of those under it
- The end of Law is to preserve and enlarge Freedom
- Liberty is to be free from restraint and violence from others
- which requires Law - [moral, yes; but legal??]
- and not to be subject to the arbitrary Will of another
226 Notes 3 - Locke [40]
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When the Father quits his Care of his children, he loses his power over them has no power “over their Lives, Good, or Liberty once arrived at years of
discretion”
- Fathers cannot dispossess Mothers of this right, nor can any Man discharge
his Son from honouring her that bore him
Children owe honour , respect and gratitude - But all these give no right to
make Laws over him from whom they are owing
226 Notes 3 - Locke [41]
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The general problem: infants are (a) helpless, and (b) products of the activities
of two adults. Why doesn’t the latter give those adults full power over infants?
Maybe the answer is that it does... But as infants mature, they become rational,
free beings, and thus have the rights of such beings.
Finding the proper mix in between is the challenge ... how much authority to
allow parents over their children? (And how much to allow other people over
children that aren’t those other people’s...)
226 Notes 3 - Locke [42]
Of Political or Civil Society
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Q: Why political society?
“Civil Government is the proper Remedy for the Inconveniences of the State
of Nature, which must certainly be Great”
“Strong Obligations of Necessity, Convenience, and Inclination drive us into
Society”
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- Domestic “society” comes first.
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Political Society begins when the power to punish is given to the Community
- by settled standing Rules, the same to all Parties
226 Notes 3 - Locke [43]
• Absolute Monarchy
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(a dig at Hobbes): (“which by some Men is counted the only Government in
the World”),
is inconsistent with Civil Society
- For the end of Civil Society, being to remedy those inconveniences of the
State of nature, which follow from being Judge in his own Case
- those who insist on being so are still in the state of Nature
- Every Absolute Prince is so re his subjects (“no Appeal lies open to any
one, who may fairly, and indifferently, and with Authority decide what may be
suffered from the Prince”)
- if it be asked, what Security is there in such a State, against the Violence and
Oppression of this Absolute Ruler? The very Question can scarce be born ...
- when [people] perceive, that they have no Appeal on Earth against any harm
they may receive from him, they are apt .. to take care as soon as they can to
have that Safety and Security in Civil Society, for which it was first instituted
...
226 Notes 3 - Locke [44]
• Beginning of Political Societies
• - No one can be put out of the SofN without his own Consent
• - one divests himself of Natural Liberty only by agreeing with other
Men to join into a Community
• - (“for their comfortable, safe, peaceable living in secure Enjoyment of
their Properties, and a greater Security against any that are not of it”)
• - This any number of men may do, because it injures not the Freedom
of the rest
• [Question: is that true??]
226 Notes 3 - Locke [45]
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Democracy
- When any number have so consented they make one Body Politic, wherein
the Majority have a Right to conclude the rest.
(Why? .. “It is necessary the Body should move that way whither the greater
force carries it, which is the consent of the majority ...”
- For if the consent of the majority shall not in reason, be received, as the act
of the whole, nothing but the consent of every individual can make any thing to
be the act of the whole: But such a consent is next impossible ever to be had.”)
>> Majority of the Community shall be decisive, unless they expressly agreed
in any number greater than the majority
[Note: It can’t be less ... For if it were, then proposed Law L and proposed
Law Not-L could both pass]
226 Notes 3 - Locke [46]
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Tacit (Implicit) Consent (remember our lecture on Socrates??)
No problem if there is express Consent [but when is that??]
But, what constitutes “tacit” Consent? Locke’s answer: living under that
Government’s protection
>> “It would be a direct Contradiction, for any one, to enter into Society with
others for the securing and regulating of Property: And yet to suppose his
Property is exempt from the Jurisdiction of that Government”
[And what if the government confiscates his property for arbitrary
reasons?]
226 Notes 3 - Locke [47]
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Reach of Assent
Submission via property. Once he sells (to anybody willing to buy...), he is at
liberty to go and incorporate himself into any other Commonwealth, or to
agree with others to begin a new one.
>> Whereas he, that has once, by actual Agreement, and any express
Declaration, given his Consent to be of any Commonweal, is perpetually
obliged to remain unalterably a Subject to it [!]
>> Submitting to the Laws of any Country, and enjoying Privileges and
Protection under them, makes not a Man a Member of that Society Foreigners, living all their Lives under another Government ... do not thereby
come to be Subjects or Members of that Commonwealth. Only express
Promise and Compact can do that ...
[Note: the effect of this would be to make a State into an Association]
226 Notes 3 - Locke [48]
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The Ends of Political Society and Government
Why will a rational person part with his Freedom? “obvious Answer”: The
Enjoyment of it is “uncertain”
>> The great and chief end of Commonwealth ... is the Preservation of their
Property
The Three Great Problems with State of Nature:
The state of Nature fails to do this because it lacks:
* 1. settled, known Law, to decide all Controversies between them ...
* 2. known and indifferent Judges, with Authority to settle all differences
* 3. power to back and support the Sentence
Thus they “take Sanctuary under the established Laws of Government, and
therein seek the Preservation of their Property”
226 Notes 3 - Locke [49]
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The Two Powers we “give up”:
(1) of doing whatsoever he thought fit for the Preservation of himself
[=Hobbes’ right of nature...]
(2) Punishing -- instead he “engages his natural force ... to assist the
Executive Power of the Society”
>> only with an intention in every one the better to preserve himself his
Liberty and Property
226 Notes 3 - Locke [50]
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Of the Extent of the Legislative Power
First : Legislative power; As the first and fundamental natural Law, which is
to govern even the Legislative itself, is the preservation of the Society, and
(as far as will consist with the public good) of every person in it “This .. is
sacred and unalterable in the hands where the Community have once placed
it;
Monopoly: >> No Edict of any other Body has the force and
obligation of a Law
[We should ask: Why not??]
[One possible answer is that, by definition, the government is the ultimate
political power in a society. - Yet notice that it is it only by our say-so,
according to Locke. But if I make a deal with you, why doesn’t that have the
very same force??]
226 Notes 3 - Locke [51]
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Restrictions on Legislative power:
1. Cannot be Arbitrary over the Lives and Fortunes of the People
2. No Arbitrary Decrees, but only standing Laws, and Authorised Judges
*** Note this next one:
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3. cannot
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[Comment: This doesn’t keep the Canadian government or constitutional gurus
from resolutely refusing to include a right of property in the Charter!]
4. cannot transfer the Power of Making Laws to any other hands..
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take from any Man any part of his Property
without his own consent >> preservation of Property
being the end of Government
Question: is it possible to have government without taxes??
226 Notes 3 - Locke [52]
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Subordination of Powers in Commonwealth
The People have Supreme Power to remove or alter the Legislative .. For,
whenever that end is neglected, trust is forfeit and Power devolves into the
hands of those that gave it.
So, the Community perpetually retains a Supreme Power of saving
themselves from the designs of Legislators ... against the Liberties and
Properties of the Subject ...
[Elections are a good substitute for Revolutions!]
XIV. Of PREROGATIVE
Prerogative: permits Rulers, to act of their own free choice, where the Law
was silent, or even against the Letter of the Law, for public good
“Who shall Judge when this Power is made a right use of? I answer: The
People have no other remedy in this, as in all other cases where they have no
Judge on Earth, but to appeal to Heaven
[Historical note: that’s a direct reference to the English Civil Wars]
226 Notes 3 - Locke [53]
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XVI. Of CONQUEST
doesn’t set up any Government - merely demolishes one
The power a Conqueror gets over those he overcomes in a Just War, is
perfectly Despotical - he has absolute power over the Lives of those - but not
to their Possessions [interesting! But nonsense, surely: If I have a power over
your life, then surely I can offer to trade it for your possessions...]
The Conqueror , even with Justice on his side has no right to seize more
than the vanquished could forfeit, e.g., the Goods of his Wife and Children
226 Notes 3 - Locke [54]
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TYRANNY
The difference betwixt a King and a Tyrant :
King obeys his own laws, and acts for the Good of the Public
Tyrant makes all give way to “his own Will and Appetite”
[Liberalism says: This is Misleading, and inadequate: unless we include in the
Tyrant’s “appetite” a thirst for theories - ideologies, views about what’s good
for people.]
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Anticipation of the Tyranny of the Majority: Not only Monarchies. For
wherever the Power that is put in any hands for the Government of the People
is applied to other ends, There it becomes Tyranny, whether those that thus
use it are one or many ....
226 Notes 3 - Locke [55]
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May the Commands of a Prince be opposed?
(1) If we say, “as often as any one shall find himself aggrieved” , this will
unhinge and overturn all Polities [cf. Thoreau]
(2) Force is to be opposed only to unjust and unlawful Force
Yes ...? (Unhelpful)
226 Notes 3 - Locke [56]
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Dissolution of Government
- Distinguish Dissolution of Society, and Dissolution of Government
What makes Community one Politic Society, is the Agreement which everyone
has with the rest ...
Governments are dissolved from within, when
1. the legislative is altered [e.g., when a single Person or Prince sets up his
own Arbitrary Will in place of the Laws]
3. the ways of Election are altered, without the Consent, and contrary to the
common Interest of the People ..
4.[by delivery of the People into the subjection of a Foreign Power ..
When the government is dissolved, the People are at liberty to provide for
themselves, by erecting a new Legislative ...
226 Notes 3 - Locke [57]
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The end of government is the good of Mankind
So: which is best for Mankind?
>> that the People should be always exposed to the boundless will of
Tyranny
>> or, that the Rulers should be sometimes liable to be opposed, when they
grow exorbitant in the use of their Power, and employ it for the destruction,
and not the preservation of the Properties of their People?
Who shall be Judge whether the Prince or Legislative act contrary to their
Trust? “I reply, The People shall be Judge”
Remaining question: Does Locke really justify government?
Provisional answer: No.
226 Notes 3 - Critics of Locke [58]
• Lysander Spooner: Government by Consent??
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Did we really “consent” to [say] the U.S. Constitution?
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The Constitution has no inherent authority or obligation.
It has it only as a contract between man and man.
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To say “yes”, to our question, we need to suppose that the deal is
* fully voluntary
* would apply only for its specified duration
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*Voting
* can bind no one but the actual voters
[so: perhaps when people don’t vote, we should count that as a vote against the office!]
* and for at most the period of the specified term of office
* would have to be in full knowledge of the Constitution etc.
226 Notes 3 - Critics of Locke [59]
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In general, the situation is that:
* without his consent having even been asked a man finds himself environed
by a government that he cannot resist;
*that forces him to pay money, render service, and forego the exercise of many
of his natural rights, under peril of weighty punishments.
*other men practice this tyranny over him by the use of the ballot.
*if he will but use the ballot himself, he has some chance of relieving himself
from this tyranny of others, by subjecting them to his own.
* [so,] if he use the ballot, he may become a master; if he does not use it, he
must become a slave.
226 Notes 3 - Critics of Locke [60]
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Conclusion:
** there is not the slightest probability that the Constitution has a single bona
fide supporter in the country.
** i.e., who both understands what the Constitution really is, and sincerely
supports it for what it really is.
Supporters of Government fall into three classes:
1) Knaves (who use govt to aggrandize themselves)
2) Dupes (are are “stupid enough to imagine that they are “free men”, etc.) i.e., who have been taken in by the political rhetoric
3) Those with “some appreciation” who either
(a) don’t see how to rid themselves of government, or
(b) would rather sacrifice their interests than work for change
[call these “victims”]
226 Notes 3 - Critics of Locke [61]
• Spooner’s Conclusion:
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Inasmuch as
1) the Constitution was never signed, nor agreed to, by anybody, as a contract,
2) and therefore never bound anybody, and is now binding upon nobody; and is,
moreover,
3) no one would consent to it, except “at the point of the bayonet”
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Therefore,
4) the Constitution is no such instrument as it has generally been assumed to be;
and what’s more,
“by false interpretations, and naked usurpations, the government has been made in
practice a very widely, and almost wholly, different thing from what the Constitution
itself purports to authorize.”
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In either case, the government under it is “unfit to exist”
226 Notes 3 - Critics of Locke [62]
• David Suits: The Challenge of Anarchism
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• Anarchism is the view that there should be no government
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Why?
- Because government is evil?
- or because government is incompetent? (-- whatever it tries to do that is
worth doing can be done better by non-governmental agencies)
[It’s not clear what the difference is ...]
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What is government for?
mainly: to protect people from violence
- from fellow citizens
- from foreigners
A special category of concern: violence from officials
226 Notes 3 - Critics of Locke [63]
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--> Or, is it to promote the happiness of its people?
two variants:
1. Platonic (or “conservative”) variant: Rulers know enough to claim they do
people a favor by not letting them act on their own understanding of happiness
2. Liberal: each is the only ultimate authority on his own happiness: others
have no business forcing him into some other pattern of life.
- Anarchism incompatible with Conservatism - The Platonic ruler claims to
know, and how will we plebes be able to show him wrong?
- On the liberal view, any government activity is at least problematic, for it
consists in forcing everyone to comply with a certain rule
226 Notes 3 - Critics of Locke [64]
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Is Government compatible with Liberalism??
Liberalism justifies force to defend self or others only
- requires that the person defended is willing to be defended by those persons
- but Locke thinks that we should all surrender our separate right to defend
ourselves to a central government
-- Why?
Three functions of Government:
Adjudication: are accused parties actually guilty?
Legislation: of the right things?
Enforcement: Will they be correctly punished?
- Locke believes that the Law of Nature really is “natural”
-- we can all appeal to it without waiting for a legislature
-- can we deny that a legislature is necessary for this purpose?
226 Notes 3 - Critics of Locke [65]
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- Locke believes that the Law of Nature really is “natural”
-- we can all appeal to it without waiting for a legislature
-- can we deny that a legislature is necessary for this purpose?
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In an anarchy, all present functions of government would either
(1) not be performed at all [drug laws; regulating trade], or
(2) would be undertaken by voluntary associations [schools, police.]
Two types of those:
commercial
non-commercial
-- Commercial is fine if the commodity is marketable
-- Non-commercial is fine if motivation is sufficient
[but if it isn’t - why should it be done at all??
226 Notes 3 - Critics of Locke [66]
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Suits challenges Locke:
on all three points:
Private/voluntary police
voluntary law
private adjudication, agreed to by all parties to it..
226 Notes 3 - Critics of Locke [67]
• Is Government worth it??
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Almost all government action results in considerable costs:
- either people get no benefit at all
- or, not what they like
- or more of it than they would be willing to pay for if they had to pay for it and had
their choice.
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1. Defense.
Warehouses, Universities, large companies, and so on, all hire private police (There are
more private than public police in the North America)
Many crimes are unsolved, criminals often get off without punishment;
victims usually do not get compensated
-- Neighborhood Watch groups
-- intruder-detection equipment (from a private company, such as Radio Shack - not
from the State), or by arming themselves.
Self-arming?
Governments not only fail to protect citizens very well, but make many laws that don’t
protect anybody from anyone (e.g., drugs)
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226 Notes 3 - Critics of Locke [68]
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2. Courts and Judges.
Most cases are settled outside courts.
Private arbitration much cheaper
- Will it work for the criminal law??
• 3. Law.
• Polycentricity: Can different groups of people live according to quite
different sets of laws?
• -> Such laws would apply only to the members of the groups
subscribing to those laws, NOT others.
• Nevertheless, they can be rules with force among the members
• -> Is that good enough? Inter-group relations important
226 Notes 3 - Critics of Locke [69]
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Agreement the Basis
Every time you and I make an agreement, we have formulated a little “law” between the
two of us
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Modern Government: Education, Health, Welfare ....
Provision of these things by the state is popular
.... So are continuing disputes about just what the public schools should be trying to
teach, which medical services the government will now allow you to have next month,
how we are going to pay for all this, why Johnny can’t read
Obvious that all of those can be provided by voluntary means.
Why aren’t they?
[Because there “wouldn’t be enough”?
Are there “positive” rights to these?
[why?]
Not on Locke’s Principle
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To Be Continued ...!
226 Notes 3 - Critics of Locke [70]
Somalian Law
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Anarchy?
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* No punishment for crimes, only restitution or compensation.
* No public prosecutors, no victimless crimes.
* Fines are limited and must be paid to the victim or to his family.
* Every person is insured for his liabilities under the law.
* Judges are appointed by the litigants, not by 'society'.
226 Notes 3 - Critics of Locke [71]
Somalian Law
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The five general rights:
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Liberty: * To acquire property, including his own body, and to use and
dispose of it as he wishes provided he does not harm the same right of all
others.
Property: * To appropriate [movable] objects that belong to no one else.
Contract: * To make agreements with consenting others.
Defense: * To defend his rights.
Restitution: * To obtain restitution from the violator of his rights.
From these five fundamental rights other natural rights derive.
No rights can exist that fall outside the framework of these five rights.
[so, a judge cannot hear a complaint not based on one of them.
therefore: no victimless crimes. You can’t haul a person in for taking dope.
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226 Notes 3 - Critics of Locke [72]
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[Somalian Law, continued ...]
natural right:
(1) to one's part of the natural world [person and property]
(2) one's activities in that world provided one respects (1) [Liberty]
kritarchy: police forces cannot lawfully use their weapons and
coercive powers except for maintaining natural rights
Courts and the policemen of a kritarchy are not part of a coercive
monopoly
Every person is entitled to offer judicial and police services to willing
others; no person can be forced to become a client of any court of law
or police force against his will
Note: The system depends on everyone’s belonging to a large extended
family.
Question: could we achieve the same with protective associations
instead?
226 Notes 3 - Critics of Locke [73]
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Concluding Thoughts on Locke:
1) State of Nature his picture: pretty general cooperation - is more realistic
than Hobbes
2) Implication for Arguments for Government: If S of N could be better,
then our tolerance for bad governments is lower: Locke regards absolute
monarchy (etc) as tyrannical and illegitimate
3) government is justified only if it improves on S of N by rectifying some
“inconveniences”
3.1 uniform punishment & administration of same
3.2 uniform judiciary
3.3 uniform law for all
226 Notes 3 - Critics of Locke [74]
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[Concluding Thoughts on Locke, continued...]
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4) can a state be consensual as Locke insists?
- not obviously! [e.g.,
4.1. Locke says that government cannot take property without consent of
owner.
- Can we have government without taxes??]
4.2. Spooner blows “consent” out of the water
5) Suits argues that there can in principle be decentralized, non-monopolistic
performances of the Lockean functions - i.e., anarchy seems possible
6) Somalian society seems to be a real-world case of a functional anarchy
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- Where does that leave us??
- On to Hume ...
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