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History of Political Thought Locke
Transcript of History of Political Thought Locke
Puritanism, a religious reform movement in the late 16th and 17th centuries that sought to “purify” the Church of England of remnants of the Roman Catholic “popery” that the Puritans claimed had been retained after the religious settlement reached early in the reign of Queen Elizabeth I.
parents of modest means.
King Henry VIII
During the reign of Queen Mary (1553–58),
separated the Church of England from the Roman Catholic Church in 1534, and the cause of Protestantism advanced rapidly under Edward VI (reigned 1547–53).
however, England returned to Roman Catholicism, and many Protestants were forced into exile. Thus, Elizabeth’s accession in 1558 was enthusiastically welcomed by Protestants; but her early actions while reestablishing Protestantism disappointed those who sought extensive reform.
Locke's father was a country lawyer who served in a cavalry company on the Puritan side in the early stages of the
English civil war.
Locke's father acted under the command of Alexander Popham,
who became the local MP, and it was his patronage which allowed the young John Locke to gain an excellent education, in Westminster School in London, and Oxford.
At Oxford Christ Church,
Locke became a physician, and then he was appointed as Lord Ashley's personal physician, but also secretary, researcher, political operative and friend. Living with Ashley Locke found himself at the very heart of English politics in the 1670s and 1680s.
The English Civil War led to the trial and execution of Charles I, the exile of his son, Charles II,
The English Civil War (1642–1651) was a series of armed conflicts and political machinations between Parliamentarians (Roundheads) and Royalists (Cavaliers). The first (1642–46) and second (1648–49) civil wars pitted the supporters of King Charles I
against the supporters of the Long Parliament, while the third war (1649–51) saw fighting between supporters of King Charles II and supporters of the Rump Parliament. The Civil War ended with the Parliamentary victory at the Battle of Worcester on 3 September 1651.
and replacement of English monarchy with, first, the Commonwealth of England (1649–53), and then with a Protectorate (1653–59), under Oliver Cromwell's personal rule.
Constitutionally, the wars established the precedent that an English monarch cannot govern without Parliament's consent, although this concept was legally established only with the
later in the century.
King James II of England
religious tolerance after 1685 met with increasing opposition by members of leading political circles, troubled by the king's Catholicism and his close ties with France.
In 1688, the birth of the King's son, James Francis Edward Stuart changed the existing line of succession by displacing the heir presumptive, his daughter Mary, a Protestant and the wife of William of Orange, with young James as heir apparent.
The establishment of a Roman Catholic dynasty in the kingdoms now seemed likely. Some of the most influential leaders of the Tories united with members of the opposition Whigs and set out to resolve the crisis by inviting William of Orange to England.
After consolidating political and financial support, William crossed the North Sea and English Channel with a large invasion fleet in November 1688, landing at Torbay.
After only two minor clashes between the two opposing armies in England, and anti-Catholic riots in several towns, James's regime collapsed, largely because of a lack of resolve shown by the king.
The Two Treatises of Governments
Published in 1689, but written during the Exclusion crisis
This whipped up public anti-Catholic frenzy and gave Shaftesbury a wide base of public support for excluding James, Duke of York from the throne. In the public chaos surrounding the sensational revelations, Shaftesbury organized an extensive party network, exercised great control over elections, and built up a large parliamentary majority. His strategy was to secure the passage of an Exclusion bill that would prevent Charles II's Catholic brother from becoming King. Although the Exclusion bill passed in the Commons it was rejected in the House of Lords because of the King's strong opposition to it. As the panic over the Popish plot receded, Shaftesbury was left without a following or a cause. Shaftesbury was seized on July 21, 1681 and again put in the tower.
In 1676 Lord Ashley was imprisoned in the tower.
His imprisonment lasted for a year. In 1678, after the mysterious murder of a London judge, informers (most notably Titus Oates)
started coming forward to reveal a supposed Catholic conspiracy to assassinate Charles II and put his brother James on the throne.
Shaftesbury was tried on trumped-up charges of treason but acquitted by a London grand jury (filled with his supporters) in November.
At this point some of the Country Party leaders began plotting an armed insurrection which, had it come off, would have begun with the assassination of Charles and his brother. The chances of such a rising occurring were not as good as the plotters supposed. Memories of the turmoil of the civil war were still relatively fresh. Eventually Shaftesbury gave up and fled to Holland in November 1682. He died there in January 1683. Locke stayed in England until the plot was discovered in June of 1683. By September he was in exile in Holland
A sketch of the main claims
A polemical work aimed at refuting the patriarchal version of the Divine Right of Kings doctrine put forth by Sir Robert Filmer (in
Patriarcha, or the Natural Power of Kings
Locke singles out Filmer's contention that men are not “naturally free” as the key issue, for that is the “ground” or premise on which Filmer erects his argument for the claim that all “legitimate” government is “absolute monarchy.” — kings being descended from the first man, Adam.
main object of inquiry
the proper or legitimate role of civil government
. To establish this would be a difficult task if one were to examine the vast complexity of existing civil governments. Locke's strategy is to consider what life is like in the absence of civil government. Presumably this is a simpler state, one which may be easier to understand. Then one might see what role civil government ought to play.
1. Definition of political power
"The possible ways of understanding the political realm are as follows:
(1) to fully explain it in terms of the nonpolitical; (2) to view it as emerging from the nonpolitical but irreducible to it, a mode of organization of nonpolitical factors understandable only in terms of novel political principles; or (3) to view it as a completely autonomous realm.
Since only the first promises full understanding of the whole political realm, it stands as the most desirable theoretical alternative, to be abandoned only if known to be impossible. Let us call this most desirable and complete kind of explanation of a realm a fundamental explanation of the realm."
Anarchy, State and Utopia
"Political power, then, I take to be
a right of making laws with penalties of death
, and consequently all less penalties,
for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the publick good.
" (I, 3)
2. The state of nature
The state of nature before there was government it is a state of
political freedom and equality
in which there is no natural superior or inferior. From this equality flows the obligation to mutual love and the duties that people owe one another, and the great maxims of justice and charity.
An alternative possibility is that the state of nature is not a real historical state, but rather a theoretical construct, intended to help determine the proper function of government. If one rejects the historicity of states of nature, one may still find them a useful analytical device. For Locke, it is very likely both.
Locke clearly thinks one can find the state of nature in his time at least in the “inland, vacant places of America” (V. 36) and in the relations between different peoples. Perhaps the historical development of states also went though the stages of a state of nature.
3. Human nature and God's purpose
According to Locke, God created man and we are, in effect, God's property. The chief end set us by our creator as a species and as individuals is survival. So, murder and suicide violate the divine purpose.
On Locke's account, the means needed to survival turn out to be
life, liberty, health and property
. Since the end is set by God, on Locke's view we have a
to the means to that end. So we have rights to life, liberty, health and property. These are
that is they are rights that we have in a state of nature before the introduction of civil government, and all people have these rights equally.
If God's purpose for me on earth is my survival and that of my species, and the means to that survival are my life, health, liberty and property — then clearly I don't want anyone to violate my rights to these things. Equally, considering other people, who are my natural equals, I should conclude that I should not violate their rights to life, liberty, health and property. This is the
law of nature
" The state of nature has a
law of nature
to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his
life, health, liberty, or possessions
: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses, as the inferior ranks of creatures are for our’s. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason,
when his own preservation comes not in competition
, ought he, as much as he can, to preserve the rest of mankind, and may not,
unless it be to do justice on an offender
, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another." (II, 6)
Universal natural jurisdiction
But when the victims are judging the seriousness of the crime, they are more likely to judge it of greater severity than might an impartial judge. As a result, there will be regular miscarriages of justice. This is perhaps the most important problem with the state of nature.
4. The institution of private property
providing an alternative to the absolutist views of government
Locke defines life, liberty, health and property as our civil interests. These are the proper concern of a magistrate or civil government. The magistrate can use force and violence where this is necessary to preserve civil interests against attack. This is the central function of the state. One's religious concerns with salvation, however, are not within the domain of civil interests, and so lie outside of the legitimate concern of the magistrate or the civil government. In effect, Locke adds an additional right to the natural rights of life, liberty, health and property — the right of freedom to choose one's own road to salvation.
Locke holds that the use of force by the state to get people to hold certain beliefs or engage in certain ceremonies or practices is illegitimate. The chief means which the magistrate has at her disposal is force, but force is not an effective means for changing or maintaining belief.
"The ancient world did not know the clash between salvationist, creedal, and expansionist religions. That is a phenomenon new to historical experience, a possibility realized by the Reformation. [...] This clash [...] forces either mortal conflict [...], or equal liberty of conscience and freedom of thought. [...] Political liberalism starts by taking to heart the absolute depth of this irreconciliable latent conflict."
The state of nature argument as a fundamental explanation of government
In the First Treatise Locke denies that either scripture or reason supports Filmer's premise or arguments.
Patriarchs, like parents, exercise a complete authority over their children and most importantly exercise control of land and property. Accordingly, all property relations within a monarch’s realm are actually enjoyed at his discretion, as he ultimately owns his territory in the way in which a patriarch owns his land and property. Adam gives authority but also jurisdiction over territory to his successors. If the monarch is the ultimate owner of his domain then he can both confer and withdraw title to property to and from his subjects.
Consequently, he does not need to ask permission to tax his subjects, as he ultimately is the rightful owner of all property and land in his domain.
As all children are born subject to parental authority, all people cannot be free and equal, for children, even adult children, are naturally subject to the authority of their parents.
The Stuart monarchs sought ways of raising revenue without going to Parliament, as it would always place con- ditions on the vote of new taxes. This was especially problematic for a Catholic king such as James II with a Protestant parliament, but it was also a problem for Charles I and Charles II as both were suspected of Catholic and absolutist sympathies through their closeness to the French monarchy.
A very limited scope for power, to be justified at the end of Locke's theoretical route
There were many alternative historical narratives provided in ancient history or the ‘Ancient Constitution’ which could have served Locke’s purpose.
This idea claimed that there was a longstanding constitution going back beyond the Norman Conquest of 1066 and which enshrined the true rights of Englishmen. Appealing to this idea allowed some of Locke’s contemporaries to argue that the Stuart kings had overstepped their authority without having to construct abstract philosophical arguments from natural right or popular consent.
The trouble with such arguments of course is that they, like the ‘historical’ argument of Genesis, are open to challenge and reinterpretation.
‘To understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in’ (II, 4)
Political power and authority is artificial, or something that does not exist in nature but needs to be created
"The power of a magistrate over a subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave." (I, 2)
The state of nature is "a state of
to order their actions, and dispose of their possessions and persons, as they think fit,
within the bounds of the law of nature
, without asking leave, or depending upon the will of any other man." (II, 4)
"A state also of
all the power and jurisdiction is reciprocal
, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty." (II, 4)
Locke is rejecting Aristotle’s claim that man is by nature an animal who lives in a political community, and that political power and authority is natural.
"It is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either above humanity, or below it."
"Now the reason why man is more of a political animal than bees or any other gregarious animals is evident. Nature, as we often say, makes nothing in vain , and man is the only animal whom she has endowed with the gift of speech. And whereas mere sound is but an indication of pleasure or pain, and is therefore found in other animals (for their nature attains to the perception of pleasure and pain and the intimation of them to one another, and no further), the power of speech is intended to set forth the expedient and inexpedient, and likewise the just and the unjust. And it is a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the association of living beings who have this sense makes a family and a state."
, I, 1253a)
Locke's main argument for equality
Vs. natural subjection
: In the natural condition all men are moral equals in that no one enjoys natural dominion or rule over another, so no one can be subject to another’s will without a clear and unequivocal declaration that God wills it.
: As moral equals we are all equal under the moral law of nature; consequently we owe recognition of this equal moral status to others.
Why should the fact that I perceive myself as being free from natural subordination to another entail that I must extend the same consideration to others?
Natural equality as equality of power
Natural equality means simply rough equality of power, whereby the weak but cunning can pose as much of a threat to the physically strong as the strong can to the weak.
hath made men so equal,
in the faculties of the body, and mind
; as that though there be found one man sometimes manifestly stronger in body, or of quicker mind than another; yet when all is reckoned together, the difference between man, and man, is not so considerable, as that one man can thereupon claim to himself any benefit, to which another may not pretend, as well as he. For as to the strength of body, the weakest has strength enough to kill the strongest, either by secret machination, or by confederacy with others, that are in the same danger with himself." (XIII)
equality of ability
equality of hope
in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become
; and in the way to their end, which is principally their own conservation, and sometimes their delectation only, endeavour to destroy, or subdue one another. And from hence it comes to pass, that where an invader hath no more to fear, than another man’s single power; if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united, to dispossess, and deprive him, not only of the fruit of his labour, but also of his life, or liberty. And the invader again is in the like danger of another." (Ibid.)
And from this diffidence of one another, there is no way for any man to secure himself, so reasonable, as
that is, by force, or wiles, to master the persons of all men he can, so long, till he see no other power great enough to endanger him: and this is no more than his own conservation requireth, and is generally allowed. Also because there be some, that taking pleasure in contemplating their own power in the acts of conquest, which they pursue farther than their security requires; if others, that otherwise would be glad to be at ease within modest bounds, should not by invasion increase their power, they would not be able, long time, by standing only on their defence, to subsist. And by consequence,
such augmentation of dominion over men being necessary to a man’s conservation, it ought to be allowed
Mutual war as a consequence of natural equality
"This equality of men by nature" is "the foundation of that obligation to mutual love amongst men, on which [...] the duties they owe one another" can be built, "and from whence [...] the great maxims of justice and charity" derive (II, 5)
The final chapter of the so-called
in June 1572 the London clerics John Field and Thomas Wilcox had issued from a secret press
An Admonition to Parliament
, which demanded that Queen Elizabeth I restore the “purity” of New Testament worship in the Church of England. Although its consideration by Parliament was forbidden by the queen, the Admonition became the platform of the Puritans
, Hooker defended the Elizabethan church against Roman Catholics and Puritans. He upheld the threefold authority of the Anglican tradition—Bible, church, and reason. Roman Catholics put Bible and tradition on a parity as the authorities for belief, while Puritans looked to Scripture as the sole authority. Hooker avoided both extremes, allowing to Scripture absolute authority when it spoke plainly and unequivocally; where it was silent or ambiguous, wisdom would consult the tradition of the church, but he insisted that a third element lay in human reason, which should be obeyed whenever both Scripture and tradition needed clarification or failed to cover some new circumstance.
The core of Hooker’s thinking on the relations of church and state is unity. In his view, the Puritans adopted an impossible position: they claimed to be loyal to the queen while repudiating her church. By law and by reason, the people of England must be Anglican, pledged to serve Elizabeth as the supreme magistrate of the country and the supreme governor of the church.
"The like natural inducement hath brought men to know that it is no less their duty, to love others than themselves; [...]
if I cannot but wish to receive good, even as much at every man’s hands, as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in other men, being of one and the same nature?
To have any thing offered them repugnant to this desire, must needs in all respects grieve them as much as me; so that if I do harm, I must look to suffer, there being no reason that others should shew greater measure of love to me, than they have by me shewed unto them: my desire therefore to be loved of my equals in nature, as much as possible may be, imposeth upon me a natural duty of bearing to them fully the like affection;
from which relation of equality between ourselves and them that are as ourselves, what several rules and canons natural reason hath drawn, for direction of life, no man is ignorant
." (Eccl. Pol. Lib. 1)
1. We cannot consistently claim that others should love us if we are not prepared to love or treat them similarly, and further any claim that offences against our desires should be punished cannot be claimed if we do not extend the same concern to others.
2. Without equality the idea of law and moral rules makes no sense, as we would be faced with the arbitrary actions of individuals constantly in conflict.
Locke's conception of liberty
Though this be a state of liberty, yet it is not a state of licence
: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it." (II, 6)
Right Of Nature
, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the
preservation of his own nature;
that is to say, of his own life; and consequently,
of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto
"By liberty, is understood, according to the proper signification of the word,
the absence of external impediments
: which impediments, may oft take away part of a man’s power to do what he would; but cannot hinder him from using the power left him, according as his judgment, and reason shall dictate to him." (Ibid.)
In the State of Nature we have an unrestricted (subjective) right to whatever we need to preserve ourselves, up to and including the body of another. By this he means we are under no obligation not to kill another person if they threaten our life and preservation. Freedom consists of the absence of restrictions on our actions by other people.
Law Of Nature
, lex naturalis, is a precept or general rule, found out by reason, by which a man is forbidden to do that, which is
destructive of his life
, or taketh away the means of preserving the same; and to omit that, by which he thinketh it may be best preserved." (Ibid.)
"Two Concepts of Liberty" (1958)
1. Negative liberty
freedom from, that is, the absence of constraints on the agent imposed by other people.
2. Positive liberty
a. freedom to, that is, the ability (not just the opportunity) to pursue and achieve willed goals
b. autonomy or self-rule, as opposed to dependence on others.
For Locke, in contrast to Hobbes, we are not free to kill others, and this is not merely because we are physically prevented from doing so, but because we have no right to do so. Rights and their concomitant duties place restrictions on what we may legitimately do, but that according to Locke this does not mean that they restrict our freedom or liberty. Instead the Law of Nature that distributes rights and duties actually constitutes our freedom or liberty. When we act against the Law of Nature we are not acting freely.
1. Natural normativity
The Law of Nature is a law and it obliges people by creating obligations.
The Law of Nature is 
from and 
(i.e. those laws that claim as their authority the fact that they have been made by legislative institutions such as Parliament or Congress) and conventional moral and social rules or moral beliefs that people hold at particular times and places.
As a consequence, positive or conventional laws and moral rules are only legitimate and binding in so far as they are derivable or consistent with the Law of Nature. Kings, princes and legislatures are therefore just as much bound by the Law of Nature as anyone else.
source of normativity
or our most basic obligations is
-- In virtue of  (law of nature
to positive laws):
The Law of Nature explains why conventional and positive laws might be binding. If we are simply left with conventions, where law is just what a legislative institution says it is, or a moral rule is simply ‘how we do things around here’, one might well argue ‘So what?’ If conventions seem foolish or wrong, or the legislature prescribes things that contradict my moral beliefs, I might well claim that in the clash of mere beliefs, mine are as good as anyone else’s. This attitude leads to anarchy, but rather than simply arguing that I must conform because anarchy is costly, painful and inconvenient. Locke provides an external criterion for assessing what can count as a law and therefore provides an answer to my sceptical query that does not boil down to ‘this is just how we do things around here’.
-- In virtue of  (law of nature
from positive laws):
Law of nature
The Law of Nature in the State of Nature as a shorthand for prudential advice. Laws of Nature in that sense are akin to generalizations from what people want or are inclined to do.
"The passions that incline men to peace, are
fear of death
desire of such things as are necessary to commodious living
; and a hope by their industry to obtain them. And reason suggesteth convenient articles of peace, upon which men may be drawn to agreement. These articles, are they, which otherwise are called the
Laws of Nature
The Law of Nature is a Law of Reason. We can know what the law is by exercising our faculty of reason.
The authority of law even if from God must come through reason first and foremost. If knowledge of the Law of Nature was only derivable from the Bible, it would not be available to all those men and women in parts of the world who have no knowledge of it. This would be profoundly unfair as it would place men under obligations for which they would be subject to punishment in the event of non-compliance, which they could not know about. So the Law of Nature must not only be universally binding, but it must be universally knowable.
3. Theological foundation
"the law of nature [...] willeth the peace and preservation of all mankind" (II, 7). Why is it that we should preserve ourselves and preserve all mankind? "For men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure." (II, 7)
The theological premise in Locke’s argument is that God made us and therefore we are his property and should exist at his discretion, not that of anyone else. He made us; he owns us.
1. Locke’s argument depends upon the claim that we can infer the idea of a Creator God from the direct and uncontroversial experience of a created order. But is this sufficient? We might infer from our experience that the world always existed and was not created.
2. Even if we do accept the inference from creation to Creator, we might just as legitimately infer that there was once a Creator or first cause who initiated the universe but who then ceased to exist and left an impersonal mechanism after him. This conclu sion would be problematic for Locke, because it would free us from being the property of someone even though we might still be his workmanship.
We can draw out the analogy by thinking of a piece of art produced by an artist who then dies, without leaving a will or without selling the work to a third party. In this case the work would be workmanship but not property in the sense that anyone could lay a claim of ownership over it.
3. Why the act of creation creates a right in the thing created?
Because we are ultimately God’s property we cannot be owned by anyone else, and this creates a kind of ‘property’ over our bodies.
But the analogy here would be that we at best enjoy a leasehold right over our bodies whereas God retains the freehold. We certainly do not have what many claim is central to the idea of a full property right, namely the right to destroy the thing owned.
Like civil laws, the law of nature can be violated. But there are no police, prosecutors or judges in the state of nature, nor did Locke rely on the promise of hell or paradise. The victims, then, must enforce the law of nature in the state of nature. Accordingly, in the state of nature, we have the rights to enforce the law and to judge on our own behalf.
"The execution of the law of nature is, in that state, put into every man’s hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do." (II, 7)
The basic principle of justice is that the punishment should be proportionate to the crime.
"And thus, in the state of nature, one man comes by a power over another; but yet no
power, to use a criminal, when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will; but only to retribute to him, so far as calm reason and conscience dictate, what is proportionate to his transgression, which is so much as may serve for reparation and restraint: for these two are the only reasons, why one man may lawfully do harm to another, which is that we call punishment." (II, 8)
The grounds of universal jurisdiction
"Transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men, for their mutual security; and so he becomes dangerous to mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole species, and the peace and safety of it, provided for by the law of nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and by his example others, from doing the like mischief. And in this case, and upon this ground, every man hath a right to punish the offender, and be executioner of the law of nature." (II, 8)
"Every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared
war against all mankind, and therefore may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security
." (II, 11)
Rights of punishment
1. Punishment (on anyone)
2. Reparation (on the victims)
There are "two distinct rights, the one of punishing the crime for restraint, and preventing the like offence, which right of punishing is in every body; the other of taking reparation, which belongs only to the injured party." (II, 11)
"Besides the crime which consists in violating the law, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature, there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation from him that has done it: 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." (II, 10)
"To this strange doctrine, viz. That in the state of nature every one has the executive power of the law of nature, I doubt not but it will be objected, that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant, that civil government is the proper remedy for the inconveniencies of the state of nature, which must certainly be great, where men may be judges in their own case, since it is easy to be imagined, that he who was so unjust as to do his brother an injury, will scarce be so just as to condemn himself for it." (II, 13)
State of nature as a state of war
" It is manifest, that during the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war, as is of every man, against every man. "
When a person threatens the life of another he effectively forfeits his own right to be preserved and can therefore be killed as one would kill a wild animal or other creature beyond the law.
It is "reasonable and just," that "I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible,
when all cannot be preserved, the safety of the innocent is to be preferred
: and one may destroy a man who makes war upon him, or has discovered an enmity to his being,
for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common-law of reason,
have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power." (III, 16)
"He who attempts to get another man into his absolute power, does thereby put himself into a state of war with him. [...] for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for no body can desire to have me in his absolute power, unless it be to compel me by force to that which is against the right of my freedom, i. e. make me a slave. To be free from such force is the only security of my preservation; and reason bids me look on him, as an enemy to my preservation, who would take away that freedom which is the fence to it. [...] He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a design to take away every thing else, that freedom being the foundation of all the rest" (III, 17)
"This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him; because using force, where he has no right, to get me into his power, let his pretence be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away every thing else. And therefore it is lawful for me to treat him as one who has put himself into a state of war with me, i. e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it." (III, 18)
The threat to life can be inferred from the threat to freedom. If a person seeks to enslave another or deprive them of their freedom by subjecting them to absolute power, then we may legitimately infer that they also threaten that person’s life, as we have no good reason to assume that anyone prepared to take away one’s freedom would not also be prepared to take away everything else.
State of nature is a state in which men live without a common superior on earth with the power to judge between them. This might well be a world in which there is conflict, but it is not such a world by definition. It is the absence of a common judge to appeal to that gives a person a right to go to war against another. This right can indeed be exercised by individuals even in a civil society where there is a legitimate authority, if that authority is unable to preserve a person.
"And here we have the plain difference between the state of nature and the state of war, which however some men have confounded, are as far distant, as a state of peace, good will, mutual assistance and preservation, and a state of enmity, malice, violence and mutual destruction, are one from another. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho’ he be in society and a fellow subject." (III, 19)
"Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man’s person, makes a state of war, both where there is, and is not, a common judge." (III, 19)
"Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. " (III, 19)
The State of Nature can be a State of War but is not necessarily one; similarly and importantly for Locke, the State of War can obtain within a society or state if its functionaries and rulers use force without right or legitimacy.
"Where an appeal to the law, and constituted judges, lies open, but the remedy is denied by a manifest perverting of justice, and a barefaced wresting of the laws to protect or indemnify the violence or injuries of some men, or party of men, there it is hard to imagine any thing but a state of war: for where-ever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury, however coloured with the name, pretences, or forms of law." (III, 20)
The function of a theory of property
Locke wished to explain the nature and limits of political obligation and legitimate political rule and he did this with the idea of consent.
Yet political rule cannot exist merely in abstract, but it needs to apply to a particular community. The question we need to answer is what is that civil society?
Locke says that "when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body" (VIII, 96).
However, this says nothing about the limits of jurisdiction of this political society. The argument from consent seems to presuppose the idea of a territorially concentrated political community over which its jurisdiction is exercised. We need to explain the legitimate nature of this idea of territorial jurisdiction.
Locke’s strategy is making territorial jurisdiction itself dependent upon pre-political rights to private property and in particular pre-political rights to real property in land. If we already own parts of the world privately, then the pooling of these pieces of individual territory as part of the voluntary consent to become part of a civil society explains the extent of that society’s territorial jurisdiction. But it also means that because these rights are prior to civil society they cannot be subject to change or interference within civil society without the consent of the original owner. So we need an account of private property rights in the State of Nature if we are to have an account of territorially concentrated political societies.
At the heart of Filmer’s argument is the claim that God had given dominion over the whole world to Adam at the creation. This involved the donation of political power, but it also involved territorial jurisdiction over the whole world.
The king could tax without consent as he was the heir to Adam and the ultimate owner of all the land in his realm. The territory of any particular state was effectively the personal property of the king and was only enjoyed on an extended lease by his subjects.
As the law of property was merely a form of convention concerning the disposition of the king’s own property it could indeed be varied without consent. This could lead to taxation without representation and expropriation of property as an arbitrary punishment for dis- obedience.
If the world was not given to Adam as personal property as Filmer claimed, then it must be the common resource of all mankind.
"It is very clear, that God [...] has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: I will not content myself to answer, that if it be difficult to make out property, upon a supposition that God gave the world to Adam, and his posterity in common, it is impossible that any man, but one universal monarch, should have any property upon a supposition, that God gave the world to Adam, and his heirs in succession, exclusive of all the rest of his posterity." (V, 25)
The consent theory of property
The world was given to man as a resource owned in common, and it was only the result of the consent of all others that enabled individuals to take and exclude others from portions of the common property of all mankind.
This primitive possession was then pooled during the contractual creation of particular political societies, but he also argued that in creating such societies individuals alienated their primitive property to the sovereign who then in return created publicly recognized property within his realm. Real property rights were therefore a social convention and could be altered by the sovereign who exercised an ultimate power of eminent domain over all the rights of his subjects.
1. the agreement to private takings from the common property of mankind would require all the rest of mankind to give their consent. If such an agreement had taken place we would certainly have some record of it.
2. But even if such evidence did exist it is not obvious that it would provide a justification for the move from common property to private property as there is always the problem of future generations who would be having their rights altered by an initial agreement that they could not be party to, and therefore could not consent to.
The self-ownership argument
"Every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. " (V, 27)
Individual property rights
We have at least one primordial source of individual private property claims and this is located in our person. As we are individuated persons rather than merely aspects of a group, whether culture, race or nation, our most basic property right is a private or individuated one. The clear implication is that individual rights claims enjoy pre-eminence over group or collective rights.
Although we may be the property of God, continuing to exist at his discretion, we cannot be the property of any power other than God. The person cannot be subject to any higher human power unless they have agreed to subject themselves to it.
In this way Locke’s claim that we own ourselves is another assertion of his fundamental egalitarianism. If we cannot be naturally subject to any higher power and we cannot be owned by any human power, then we are all, at least in this respect, moral equals.
Labour in some highly ambiguous sense of that word seems to be an expression of our persons so that whatever we labour on is connected to our persons or that which we ultimately and exclusively own.
If one owns a pair of trousers these can be removed from the person, sold, destroyed or given away. In other words the object of ownership is separable from the person. Yet clearly our relationship with ourselves is not like that at all; we cannot actually have a relationship with ourselves as this would suggest there is something that the person is relating to, but what would that be other than the person?
1. The common resource argument
"God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no inclosure, and is still a tenant in common, must be his, and so his, i. e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life." (V, 26)
The world is a common resource from which each of us is not under a duty NOT to take what we need. The world is a common stock from which we are at liberty to draw the means of our self-preservation.
The labour-mixing argument
"Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: 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, at least where there is enough, and as good, left in common for others." IV, 27)
As we labour on the un-owned matter of the world, we mix something of our own with that matter and in so doing acquire an exclusive claim to it. To deny this claim to exclusive ownership would entail allowing others to claim ownership of part of my person.
Think of the first cultivator of virgin land in a new colony. The colonist clears the land of trees, roots and rocks, and then encloses it from the common stock of nature. This piece of land is then ploughed – literally mixing the sweat of one’s brow with the newly cut soil – and then cultivated. A similar sort of physical relationship is established with the process of harvesting.
If someone were to come and interfere with his crops and take his produce we would tend to regard this as unfair and taking advantage of someone. We might also think of this as taking what already belongs to someone else. We might certainly think that the farmer has the right to his crops which would not have existed without his labour. In this sense the labour does indeed seem to connect with the property claim. If he grew potatoes, then arguably they would not have existed without his effort and therefore he is not taking them from the common stock. Anyone coming along and helping themselves to his potatoes would not be exercising their right to something that was common. The potatoes were never part of that common stock.
But what we have not done is establish a claim to ownership of the land on which the crop is cultivated. Enclosing the land is indeed taking something from the common stock for exclusive use and enjoyment and it is much less clear that the farmer’s working of the land gives him a right to exclude others who might consider the land a common resource for traditional hunting, for a general right of way, or merely for walking one’s dog. None of these activities involves taking the crop of the farmer; they merely involve challenging the exclusive claim to use the land, and it is not obvious why mixing one’s labour with the land creates this exclusive right.
Assume that labour is indeed the kind of thing that can be owned and mixed in the relevant sense, like a can of tomato juice. If we mix that with what was previously un-owned, do we actually acquire ownership of the ocean or do we merely lose our tomato juice?
The Labour Theory of value
The produce of labour is not part of the common stock in the first instance.
the input of natural resources is at best a very small component of the value created by labouring.
Thus the labourer has a prima facie case to own that which he has produced, other things being equal. As the produce would not have existed without the labour, nobody can claim a share of it on the basis of their claim to the common stock. Thus the producer does indeed seem to have a prima facie right to the produce. Furthermore, it is unfair to deprive the producer of what he has produced so that coercive expropriation would be an unjust act.
Unfortunately, this argument from the fair enjoyment of the value produced by labouring does not provide an exclusive claim to real property in land.
" it is labour indeed that puts the difference of value on every thing; and let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with wheat or barley, and an acre of the same land lying in common, without any husbandry upon it, and he will find, that the improvement of labour makes the far greater part of the value. I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man nine tenths are the effects of labour: nay, if we will rightly estimate things as they come to our use, and cast up the several expences about them, what in them is purely owing to nature, and what to labour, we shall find, that in most of them ninety-nine hundredths are wholly to be put on the account of labour". (V, 40)
Conditions limiting acquisition of property
Clearly Locke believed that on the basis of the Law of Nature each person has a right to acquire the means to their own self-preservation. This entails an equal right to acquire property. However, a right to acquire property is a very different thing to a right to an equal amount of property. When it comes to individual property holdings, Locke believed that these holdings should reflect labour and effort. So the labour theory of acquisition allows for material inequality among equal rights holders.
But however great the amount of value created by labour, at some level all labour must use the material resource of nature, which as we saw is a common resource. And however intuitively plausible it is to give the individual labourer the product of his labour, the claim to exclusive ownership of material resources in the world is more controversial.
the initial takings can only be justified if they do not undermine the equal rights to acquire property that Locke claims all humans possess. He therefore needs a way of showing how initial acquisition is compatible with the common rights of all others, at least to the extent of not making them worse off.
1. The "non-spoilage" condition
2. The "enough and as good" condition
It places limits on what portion of land can be taken and enclosed, as we cannot claim ownership of land so extensive that we cannot cultivate it and turn it to human purposes. The constraint also applies to the way nature can be used in producing what is not part of the common stock. The rightful accumulation of produce from one’s own land is constrained by the ability to consume it or trade it. If a farmer is particularly successful and produces more grain than he can ever use without it spoiling, then his just right to property only extends to that portion that he can use. By implication others would have a title to the surplus produce if it was otherwise to spoil and decay.
"It will perhaps be objected to this, that if gathering the acorns, or other fruits of the earth, &c. makes a right to them, then any one may ingross as much as he will. To which I answer, Not so. The same law of nature, that does by this means give us property, does also bound that property too. God has given us all things richly, is the voice of reason confirmed by inspiration. But how far has he given it us? 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: whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. " (V, 31)
The non-spoilage constraint is a clear implication of the Law of Nature to preserve as much as may be preserved. This is the basic justification for taking from the common stock and therefore it would be somewhat curious if we could take things from nature, not to use but merely to spoil and waste.
Property may be acquired only ‘. . . where there is enough, and as good left in common for others’ (§ 27).
Initial acquisition is permissible and legitimate when others are not prevented from also acquiring the means of their own subsistence and preservation.
The prospects of securing individual subsistence are not harmed by the taking of un- owned land; consequently no one has a claim of right to prevent another doing so. So just as the taking of what someone else has produced by their labour would be unjust when the expropriator could also have secured his subsistence by labouring, so it would be unjust to deprive another of the land they have taken when that does not limit the ability of others to secure their own subsistence.
In circumstances where the subsistence of others is prevented by the existing system of property and that there is no other way of securing subsistence, the primary obligation to pre- serve ourselves and others will trump the claims of private property.
The invention of money
Conventional origins: the practice of accepting precious tokens is a practice that grows up among people but without any conscious agreement to begin it. Once the practice is in place then consent to the use of money provides its justification, but it is important to note that the form of consent we find here is tacit. No one can be compelled to accept tokens in exchange for produce, but once people recognize the value of the convention of money they have good reason to consent to it.
"But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a 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, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor. This partage of things in an inequality of private possessions, men have made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money: for in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions." (V, 50)
The chief value of money is that it enables accumulation that would otherwise fall foul of the non-spoilage constraint. Once accumulation is possible then so is the social surplus that is necessary for the development of society, industry, culture and the arts. Money liberates the power of labour from the satisfaction of immediate need, by allowing labourers to produce objects for sale in return for the conditions of subsistence.
"And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them: for supposing an island, separate from all possible commerce with the rest of the world, wherein there were but an hundred families, but there were sheep, horses and cows, with other useful animals, wholsome fruits, and land enough for corn for a hundred thousand times as many, but nothing in the island, either because of its commonness, or perishableness, fit to supply the place of money; what reason could any one have there to enlarge his possessions beyond the use of his family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter for like perishable, useful commodities, with others? Where there is not some thing, both lasting and scarce, and so valuable to be hoarded up, there men will be apt to enlarge their possessions of land, were it never so rich, never so free for them to take: for I ask, what would a man value ten thousand, or an hundred thousand acres of excellent land, ready cultivated, and well stocked too with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the inclosing, and we should see him give up again to the wild common of nature, whatever was more than would supply the conveniencies of life to be had there for him and his family." (V, 48)
Money solves the problem of acquisition for subsequent generations, for even if the whole cultivable world were appropriated each person would still have one source of property that could secure subsistence, namely their labour power. Because individuals can still sell their labour in return for wages they effectively have an equal access to the acquisition of property. This does not of course mean that they have a right to the same amount of property, but it does mean that no person can be without property as they can always labour for another in return for wages.
Moreover, by making possible legitimate accumulation over and above what is needed for subsistence, money makes significant material inequalities possible. Inequalities are justified because we have tacitly consented to them through the system that makes them possible. While we continue to use and accept money we continue to consent to those inequalities. We could still reject the use of money if we wished and therefore our not doing so is a sign of consent. The monetary system brings with it considerable benefits for all of us, even the worst off, as it allows for the accumulation of a surplus that makes charity possible.
Locke does not consider whether this tacit consent is free or coerced, because he does not consider the extent to which the wage labour and the monetary system entrenches unequal distributions of power and advantage that are just as arbitrary as the arbitrary power he saw in political absolutism. Locke has no theoretical under- standing of economic power and its coercive potential.
5. The origins of political society
The anarchist challenge: why do we need a state at all?
The anarchist’s challenge is particularly important in Locke’s case as, unlike Hobbes or other pessimistic contractarians, he does concede the idea of society prior to the artificial creation of civil or political society.
Locke acknowledges the pre-political nature of the family and by implication the idea of clan or tribal societies prior to the creation of the modern state.
The State of Nature includes complex social practices that evolve around the idea of private property such as money and exchange. All of these social practices entail conventions and rules which are independent of the idea of a single sovereign power.
But most importantly, Locke’s State of Nature is not a war of all against all, but is rather a law-governed order where people already have rights, duties and obligations and the executive power to punish their violation. For the anarchist all of this might well seem sufficient. What more is added by the creation of sovereign political power?
Locke's answer: remedying the inconveniences of the state of nature
In the State of Nature each person has the Executive power to enforce and punish breaches of the Law of Nature. But the equal right to exercise this Executive power entails a number of inconveniences that are the result of human partiality and passion.
The problem is that if everyone is effectively judge, jury and executioner of the Law of Nature there is no impartial judge who can arbitrate between disputes about the application of the law and the appropriate level of just punishment, when it is breached.
The origin of political or civil society is the rational desire to impose a single impartial judge between men in disputes about their rights. The task of the state is to legislate so that individual rights might be given a clear and determinate application through settled laws that apply to all, and to execute the application of those laws when there is a dispute between persons.
1. the establishment of the political community
2. the establishment of government
"MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community, for their comfortable, safe, and peaceable living one amongst another, in a 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; they are left as they were in the liberty of the state of nature." (VIII, 95)
Political society unlike other forms of society – tribal, clan, family – is a voluntary association. Nobody who does not agree to join the political society can be coerced to fall under its rule.
Locke’s conception of a political society is a bounded territorial jurisdiction, where the boundaries are set by the limits of the property held by the respective members of that society. So one of the essential features of the origin of a political community is the pooling of property into one territorially constituted political community. This explains why there are particular political communities, for unless people join their property together there can be no political community. As the point of pooling property into a territorially constituted political community is its protection through legislation, the primary need for protection will be from those who are proximate rather than those who are wholly remote.
The voluntary association model of society
It is important to note, however, that in speaking of pooling property into a single political community or body politic, Locke does not argue that individuals alienate (or give away) their private prop-erty to the community. We merely transfer our right to execute the Law of Nature with respect to our property, but retain full original ownership of that property. The point of pooling our property is merely that it marks the boundary of the jurisdiction of the state in enforcing and securing property.
The good of government
Government, with its legislative and executive powers, is the primary good provided by political or civil society, as it is through government that our rights are protected and secured and the public good is promoted.
Where the establishment of political society involves the unanimous agreement of those who are members, the establishment of government only requires the agreement of a majority
"And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation, to every one of that society, to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact, if he be left free, and under no other ties than he was in before in the state of nature. For what appearance would there be of any compact? what new engagement if he were no farther tied by any decrees of the society, than he himself thought fit, and did actually consent to? This would be still as great a liberty, as he himself had before his compact, or any one else in the state of nature hath, who may submit himself, and consent to any acts of it if he thinks fit." (VIII, 97)
Majority rule vs rights?
The idea of majoritarian rule is often seen as in conflict with the rights-based arguments that Locke uses elsewhere in the Second Treatise.
Locke does not appeal to the idea of a majority to decide the right answer in questions of funda- mental morality. Majority decisions do not have a superior epistemic or normative status as a source of moral obligations. In regard to our basic obligations under the Law of Nature, individual reason is the sole source of authoritative moral principles. Locke does not appeal to the judgement of a majority to settle any question of fundamental right.
Locke introduces the idea of majority decision to settle the structure of the constitution of the state. He did not think that there was a unique constitutional structure to the state. The constitution is an indifferent matter in that it is constrained and limited by the Law of Nature, but its details are not directly prescribed by an appeal to the fundamental law. People can legitimately differ about how to structure the constitution, how to order the ministries that make up the executive branch and how to settle the structure and frequency of meetings of the legislative. There is in effect no right answer to these questions and it is this problem that Locke wishes to solve by appealing to the will of the majority.
Deliberation on the nature and structure of government could be potentially endless if we sought a unanimous acceptance and this would undermine the point of the original agreement to form a state. In agreeing to leave the State of Nature we are in effect agreeing to limit our disagreement, which was after all the source of the major inconvenience of the pre-political condition.
The majority judgement will tend to be the most legitimate because most people will actually endorse it and this is precisely the problem with the individual rule of an arbitrary monarch. Those who do not directly endorse a decision might, however, be said to consent to that majority decision by partaking in the decision- making process. If one accepts the procedure for decision-making, one must accept the legitimacy of the outcome even if one is in the minority, just as in playing a game by the rules one must accept that one might not win.
Majorities indicate the effective power of the body of the political society in a way that individual judgements do not, and it is this ability to sway the body politic and make it act effectively that concerns Locke most. The harnessing of effective power to protect and secure our most basic rights is precisely what we seek in leaving the State of Nature, for it is that which the Law of Nature lacks. Locke’s argument does indeed seem to be that there is safety in numbers.
However, the harnessing of majority power is to protect and secure our rights, so although Locke does acknowledge the importance of considerations of power in political theory he still subordinates the claims of power, even majority power, to the claims of right.
Kinds of consent
"Every man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent; it is to be considered, what shall be understood to be a sufficient declaration of a man’s consent, to make him subject to the laws of any government. There is a common distinction of an
consent, which will concern our present case. No body doubts but an express consent, of any man entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i. e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that
every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government
." (VIII, 119)
Express consent is straightforward and involves explicit agreements such as promises and oaths of allegiance whereby individuals consciously place themselves under clear obligations. But of course not all individuals take such oaths, so this provided at best only a partial account of legitimacy and political obligation. Furthermore, Locke was aware that an original contract to establish a civil society would at best bind the original contractors and therefore leave all future generations without an obligation to obey the state, or worse still, given the challenge of political absolutism, subject to alternative accounts of political obligation that made no reference to consent. To overcome this problem Locke introduced the idea of tacit consent.
"Can we seriously say that a poor peasant or artisan has a free choice to leave his country when he knows no foreign language or manners and lives from day to day by the small wages which he acquires? We may as well assert that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep and must leap into the ocean and perish the moment he leaves her?", Of the Original Contract
In order for consent to be genuine a person must
1. know what she consents to;
2. intend to consent;
3. be able to communicate the consent and the intention toconsent.
Could one in a primitive state of the sort Locke envisages have any understanding of the nature and scope of inequalities that an advanced economy makes possible? The sort of difference between richest and poorest in Locke’s time, though considerable, would be insignificant compared to the inequalities that are possible in our own advanced economies.
In the case of enjoying the protection of the laws or travelling on the highway, it is hard to envisage how one might signify the intention NOT to consent. After all, trying to flee the state would itself involve travelling the highway and consequently would seem to indicate tacit consent, even if those fleeing intend no such thing. If one cannot in principle signify non-consent, then almost every action will count as a species of consent and therefore the idea becomes meaningless and redundant. In this way the idea of tacit consent fails both the intentionality condition and the communication condition, as there is no possibility of expressing the absence of consent which is not at the same time an example of consenting, and every act one engages in, even acts of resistance, would appear to com municate some form of consent.
6. Tyranny, rebellion and resistance
Locke's general claim
We have a right to resist against illegitimate uses of political power and a right to rebel against regimes that threaten our rights and civil interests. This right is both an individual right and a collective right exercised on the part of the whole political community.
"Tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage. When the governor, however intitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion." (XVIII, 199)
In the case of the individual Locke reasserts the individual’s inalienable right to defend himself against forceful aggression, whether this is from a thief or murderer, or a government servant acting outside the law. The threat and use of force puts an aggressor in a state of war with the ‘aggressee’ and they retain the right to defend themselves and resist.
If the aggressor is the government or one of its functionaries then relying on the public defence is also impossible so one retains the right to resist. Yet in the case of individuals, Locke argues that the right to resist is only appropriate in the face of direct threats of force. If one can go to law to hold to account an unjust act by a public official, then one should do that first.
If however an individual falls foul of the state and cannot seek redress from its highest court or the king, this does not necessarily entail that the individual should go to war against the state. Individuals must use their reason and judge the likelihood of success of going to war against the state without the support of their fellows. Clearly if the state mounts an assault on a person’s life and property then they have no choice but to defend themselves and probably nothing much to lose if they are unsuccessful. But in cases where a person’s life may not be at risk or their person and property might not be at risk in perpetuity, one needs to exercise prudence. If such acts by the government become widespread or widely known they will potentially lead to the breach of public trust that generates a public reason to resist the government, but if the cases are few and not well known, the individual might find himself on his own and he must therefore exercise prudence.
A government that acts beyond the law effectively dissolves itself; therefore one can hardly rebel against it. This is reinforced by Locke’s claim that the exercise of illegitimate force is an act of aggressive war (§ 207) and therefore that the people are perfectly within their rights to defend themselves and resist the aggression. Similarly he suggests that a prince or gov- ernment that puts itself in a position of war with its people ceases to be the legitimate government, and are therefore the true rebels against the legitimate order. Again the people are within their rights to resist such rebels.
If assaults by government are more generally felt on the wider public, the situation is different and the case for regarding the gov- ernment as dissolved is clearer.
In deciding when the government has dissolved, we should appeal to the majority judgement. Yet this answer is far from straightforward in the case of the right to resist a rebel government.
There is the question of how we can distinguish a vocal and active minority from a genuine majority and how we can identify a majority when the margin between majority and minority is very small. Even in complex modern electoral systems it can be very difficult to distinguish the majority will or voice. How much more difficult is it to identify it in the face of a dissolution of government?
A further problem is what is to be done if the majority is actually indifferent to actions on the part of the government that ought to dissolve its legitimacy? Suppose the majority of a state allows its government to persecute, expropriate and kill its Jewish minority population. Each action is a clear breach of the Law of Nature, but if the majority sees these acts as solely confined to a minority it does not care about, it can easily claim that the general public trust is unaffected and therefore it will not judge the government to have been dissolved.
Before we dismiss Locke's argument completely we need to note three things which perhaps rescue it from being vacuous.
Although it is hard to identify the precise criteria for when a particular government has dissolved itself, and gone to war with its people, we can identify some cases in history and contemporary politics where the necessary and sufficient conditions of dissolution clearly obtain. Such cases may be rare, but they do exist and they do combine clear breaches of the Law of Nature with a breakdown of public trust.
In the case of Rwanda in 1994, where the majority Hutu population went to war against the minority Tutsi population, it would be hard to claim that the gov- ernment continued to function as a legitimate government and had not dissolved itself into a warring faction.
Perhaps we should expect Locke’s argument to give clear answers in only the most serious circumstances. Locke is quite clear that he does not want to license every disgruntled individual or group to go to war against the state.
Perhaps we should see the defence of the right to rebellion as a trump card that the people always hold against the government, and a potential warning about what might happen if they stray beyond lawful political power. If this checking function works properly, then it will rarely if ever need to be exercised. In this sense it is like the provision for emergency powers in a constitution, where the provision refers to the exercise of extra constitutional powers which by definition cannot be formalized in the normal structure of the law. In Locke’s case the emergency power resides only with the people and not with a ruler.
we have a duty to protect other members of our society who are being assaulted by the rebel government where this duty is not a matter of discretion or liberty.
We have no right to be indifferent to the sufferings of a minority within our own state if we face up to our obligations properly.
The English and Scottish
Protestants gone into exile during the reign of Mary Tudor, aka Mary I of England (1533-1558)
John Ponet (
A Shorte Treatise ofPolitike Power, and of the true obedience which subjectes owe to kynges and other civile governours . . .
, 1556), Christopher Goodman
How Superior Powers Ought to be Obeyd of their Subjects
, 1558), and John Knox.
Anyone who can get away with an act of violent resistance to a tyrant should
We must obey God in the principles by which we choose rulers rather than follow our own fantasies, and 'common people also' must make their princes obey God's laws.
(1) lawful kings do not receive their power by inheritance but rather by election; (2) it is never legitimate to elect an idolater as king or to any public office; (3) even a promise to an elected idolater is not binding; (4) if an idolater has been mistakenly elected to public office, those who elected him can and should depose him.
Theories of Resistance
1530: the imperial diet in A u g s b u r g had once again failed to resolve the religious split provoked by Luther's attack on indulgences back in 1517,and the emperor resolved to suppress Lutheranism by military force.
In response to that threat, a group of Lutheran principalities and cities had organised the Schmalkaldic League, committed to defending their faith by armed force.
To justify this resort to force, lawyers on the staffs of the two leaders of this league, Hesse and Saxony, developed resistance theories.
The constitutional argument
The emperor is elected, by the seven great prince-electors, supported by the lesser princes and cities of the empire. This election is conditional, granting power that is provisional and partial, not absolute. The lesser princes retain the responsibility for the proper exercise of religion within their realms. Thus any emperor who seeks to force them to change religious policy is overstepping the bounds of his authority and forfeiting his claim to general power. In these circumstances he may and should be resisted, with armed force if necessary.
It is always permissible to use force to repel force, and there are clauses permitting citizens to resist the orders of a manifestly unjust judge, who was not applying the law as he should in his decisions. The emperor was behaving like an unjust judge in condemning their religious policies. His orders, thus, could not be accepted and must be resisted
In 1546, after Luther's death, the imperial threat did materialise and resulted in the first Schmalkaldic war. That war ended in 1548, with a smashing imperial victory and was followed by imperial decrees imposing a religious compromise on all of Germany, the Interims of Augsburg and Leipzig. Many Lutherans accepted these compromises. But a few of Luther's most devoted followers, the so-called Gnesio-Lutherans, refused to accept any compromise, and insisted on continuing resistance to the imperial armies. This position was explained and justified in several manifestos issued b y the magistrates and pastors o f M a g d e b u r g in 1550, most notably a Confession of the pastors drafted on 13 April.
All governments, both superior and inferior, are bound to enforce certain natural laws inherent in all human society, as, for example, the laws governing marriage. If the superior level of government seeks to legislate positive laws in violation of these natural laws, it must be resisted. The imperial government in 1550 was violating natural laws in seeking to impose upon Magdeburg a false and idolatrous form of religion. The magistrates of Magdeburg, thus, had to resist this imperial initiative.
23 August 1572 St. Bartholomew's massacre
Integral role within French government of a Public Council representing all elements of the kingdom's population. This Council rightfully held ultimate power within the state. It created and could depose kings, for it was the custodian of the immutable fundamental laws by which all kings of France were required to govern. It had to share with the crown in making the most important decisions in government policy, including decisions to tax, and most explicitly the right to regulate religion.
Du droit des magistrats
God must be obeyed above all human authorities. This means that there are times when human law must be disobeyed, even if those w h o disobey must endure punishment, even martyrdom.
The population living under legitimate ruler who turns sour and wicked, runs into three categories:
(1) private individuals;
(2) inferior magistrates, such as provincial governors and city mayors, who share power under a king's direction over restricted local areas;
(3) magistrates whose constitutional duty it is to serve as a check or bridle on royal power.
The private individuals, of course, are not allowed to resist with force, but must limit themselves to passive disobedience, prayers, and repentance. The inferior magistrates hold power by what amounts to a reciprocal contract with the king, a contract embodied in their oaths of office. If any king abrogates his side of this agreement by encroaching on the local responsibilities of these magistrates, then they are free to abandon their side of the contract requiring loyalty to the crown and may join in armed resistance. The magistrates who advise the king, primarily through the Estates General, have a constitutional duty to hold him to his responsi bilities. If he fails, they may organise armed resistance against him, even depose him if that prove necessary.
Vindiciae contra tyrannos
Two contracts: a first between God and the general population, both ruler and ruled; a second between a ruler and his subjects. Like all contracts, these bear mutual obligations, and if one party fails to fulfil his obligations, the other party is released from his. Thus a king who flouts the laws of God loses divine support as mediated through the leaders of the religious community, and a king who breaks his promises to his subjects loses the obedience they had promised to him.
1561 Mary Stuart, on the death of her first husband, Francis II, king of France, had returned from the continent to claim personally her inherited right to rule Scotland. She remained loyal, however, to the Catholic faith in which she had been raised and to which her French relatives of the Guise family were so committed. This brought her into immediate conflict with the Protestant regime that had been established in her absence by the covenanted Lords of the Congregation, assisted by Knox. That conflict was softened in 1565, when the queen married and made king Lord Darnley, but it worsened seriously in 1567, when Darnley was murdered and Mary then married one of those responsible for the killing, the earl of Bothwell. A revolt of nobles led by Mary's natural brother, the earl of Moray, led to her expulsion from the kingdom, the proclamation that her infant son was now King James VI, and the granting of actual power to Moray as regent. Mary took refuge in the England of Elizabeth I where she passed the rest of her life under house arrest.
Moray and his associates in the regency government of Scotland needed a defender of their policy. They found one in George Buchanan, who authored
De jure regni apud Scotos
A king is one who gains power by popular consent, who rules by law, and who is subject to law. But law is not static. It is to be made and changed by the estates of the realm; and for its interpretation and application a king must have a council of wise men and must permit himself to be guided by them. A tyrant, on the other hand, seizes power unilaterally and claims that he can create laws and that he need not be bound by them. He also does not accept advice. Kings rule for the benefit of their subjects. Tyrants rule only for their o w n personal gain.
The classic exhortations to obedience, Buchanan argues, apply only to true kings, not to tyrants. Since the rule of tyrants is not legitimate, they can be deposed. A tyrant can be removed by legal action, leading to imprisonment or exile. A tyrant can be resisted by military force. A tyrant can even be assassinated, if that is the only way to dispose of him or her.