That’s John Locke, the physician and the philosopher up above. John Locke, from Lost, is over on the left. Don’t confuse the two. We’ll be talking about John Locke the philosopher.
Back in the early ‘70s, between 1970 and 1974, we lived on 8th St. NE, part of Capitol Hill in DC. We would ride one of the number 30 buses that ran along Pennsylvania, Ave to the Circle Theater in NW. One day we were riding, and this guy was trying to impress a girl with his intellect, and he was talking about Locke.
“He influenced the American Revolution.” “How?” “By his ideas.” “Oh.”
I’m afraid the conversation more or less petered out after that flash of brilliance, and I’ve got no idea how the poor guy made out, or if he did make out.
In any case, I want to discuss Locke’s essay on civil government. With any luck I won’t be as tongue-tied as the poor guy on the bus.
This is the second of two essays that Locke wrote. The first dealt with the issue of divine right. Locke says that he disproved the validity of divine right by showing that kingship is not based on divine appointment.
Locke refers to the argument from the previous treatise, and asserts that the patriarchal theory espoused by Sir Robert Filmer has been disproved. Government cannot be traced back to some primal state in which God conferred kingship upon Adam. Locke’s argument denies the validity of the theory of the divine right of kings.
Of the State of Nature: Locke postulates a state of nature in which perfect freedom and perfect equality exist. Now he makes clear that perfect freedom is freedom within the context of the possible. I am free to flap my arms as much as I want, but because I am not a bird I am not free to fly no matter how much I flap my arms. Perfect equality is not mathematical equality but juridical equality. Each is equally subject to the laws.
Locke derives his theory of government from this state of nature. Rights exist in the state of nature, as do laws and obligations, it is from this state of nature that positive or written law is drawn. Written laws and constitutions do not grant people rights, they recognize and codify rights that derive from that state of nature.
Arguments that derive from the theory that it is the constitution that grants rights are, under this interpretation of Lockean theory, false.
I have the right to free action, but that right is limited by your rights. So I have freedom to move my arms, but not in the direction of your face. If I do, then you have the right to defend yourself. In this state of nature the right of self-defense is essentially unlimited. Locke does not address the right to bear arms directly, but it follows from his principles that the right to self-defense includes the right to the means to self-defense, i.e., the right to bear arms, which is enshrined in the 2nd amendment.
Of the State of War: Locke does not go as far as Hobbes and contend that there is a state of war of all against all, but he does start off with the idea of two individuals contending in a state of war.
Locke says of this state of war:
“THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, 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.”
So I have the right to self-defense, which is enlarged into a nation’s right to self-defense. Accordingly both individual and nation have a right to the means of defense. His comparison of the man and the wolf/lion raises the question, which I don’t believe he answers, as to whether, given a reasonable belief that my enemy is preparing to attack me, I am justified in striking at him in such a way as to prevent the attack.
Of Slavery: Locke does not castigate slavery as a moral evil. He sees it as an act of subjugation by one person over another. He notices the objection that slavery was countenanced in the Old Testament, e.g., Jacob slaving for Rachel, and contends that it was not slavery, merely drudgery. Actual slavery, as practiced in Greece, Rome, and the American South, he sees as a continuation of the state of war:
“This is the perfect condition of slavery, which is nothing else, but the state of war continued, between a lawful conqueror and a captive: for, if once compact enter between them, and make an agreement for a limited power on the one side, and obedience on the other, the state of war and slavery ceases, as long as the compact endures: for, as has been said, no man can, by agreement, pass over to another that which he hath not in himself, a power over his own life.”
Of Property: Man, in a state of nature, has a right to preserve his own life. This means that he has the right to as much as he can obtain and use. Goods that are perishable can be traded with others. As goods accumulate more perishable goods are stored up to, well, perish. So trade and money come about as the result of people making up for one deficiency by trading their surplus goods for someone else’s surplus. Money facilitates trade by enabling one party to sell to a second and buy from a third. The right to property is thus derived from the state of nature.
Of Paternal Power. Fathers have authority over their children while they are children. Once the child has come to a man’s estate the parental authority ceases. Locke here is at pains to deny the validity of the Roman pater familias who had life and death authority over his children.
Of Political Or Civil Society. Locke accepts, or at least says that he accepts, the Biblical account of creation. He finds the first society to be the Edenic one of man and wife. Locke’s description of marriage recognizes a contractual basis for marriage, which could be used by gay marriage advocates, but he also says that there is a primary end or purpose for the marital relationship:
“Conjugal society is made by a voluntary compact between man and woman; and tho’ it consist chiefly in such a communion and right in one another’s bodies as is necessary to its chief end, procreation; yet it draws with it mutual support and assistance, and a communion of interests too, as necessary not only to unite their care and affection, but also necessary to their common off-spring, who have a right to be nourished, and maintained by them, till they are able to provide for themselves.”
Locke asserts that the primary purpose of marriage is procreation, which puts him in the tradition of most contemporary theologians, and aligns him with critics of contraception who deny that the marital relation is about fun and games over children. Of the Beginning of Political Societies. Locke begins this chapter with with the assertion, “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.”
“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.”
Locke emphasizes the contractual nature of the body politic. The person entering into the society engages in a contract, one of the terms of which is that he will be bound by the will of the majority. This effectively limits the individual’s freedom of action, but each person in that society is subject to that same limitation. If this is recognized as a cost, the right of another is the cost of my right. The cost of my freedom to be Catholic or Jewish is the right of my neighbor to be Protestant or Muslim.
Of the Ends of Political Society and Government. What is the end, or purpose of political society? Locke’s answer is: “The great and chief end, therefore, of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting.” The Declaration of Colonial Rights from the First Continental Congress reads “life, liberty, and property,” not the “life, liberty, and the pursuit of happiness” of the later Declaration of Independence. Property, for Locke, was, I think, a means, not an end in itself. Jefferson’s use of happiness, while it may derive from sources other than Locke, shifts the emphasis away from the means toward an ultimate end. Within the context of Locke’s philosophy governments that act in such a way as to destroy property, or confiscate it, act in such a way that they violate the proper end for which they exist. This principle is enshrined in the takings clause of the 5th amendment, which prohibits the taking of property without just compensation to the owner. When an agency, or a court, acts to confiscate property, as in the case of Kelo, which used government power to transfer property from one owner to another private owner on the specious grounds that the alternative owner would produce more tax revenue, it acts in a way that is destructive of the ends for which it is instituted. Likewise, when a government acts to destroy an entire industry, such as the student loan industry, or a company is forced, without due process, to surrender part of its capital, it acts contrary to the ends for which it was established.
Of the Forms of a Common-wealth. Locke defines a common-wealth as “not a democracy, or any form of government, but any independent community, which the Latines signified by the word civitas, to which the word which best answers in our language, is common-wealth, and most properly expresses such a society of men, which community or city in English does not.” Of the Extent of the Legislative Power. Locke apparently conceives of government as being bi-partite, executive and legislative, rather than as tri-partite, executive, legislative, and judicial. He also contends that it is the legislative power that is supreme. Locke sees the purpose of society as “the enjoyment of their properties in peace and safety,” and the means of that as “the laws established in that society.” This legislative power is “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.” The idea that the natural law is to govern even the legislature itself is expanded into the idea that legislature must be subject to the laws that it makes for the people. It should be noted, however, that this principle is not consistently observed. The 1964 civil rights act exempted Congress from its coverage. It was not until the 1990s that Congress came under that act. The same holds true of the current health care reform bill. Congress is exempt from that.*
Locke contends that the power of the legislature to make laws derives from the consent of the society, i.e., the consent of the governed. This principle is explicitly enshrined in The Declaration of Independence. The legislature’s power, as conceived by Locke, cannot be “absolutely arbitrary over the lives and fortunes of the people.” This is because the power of the legislature flows from the people, and the individual’s power is limited. It cannot be an “absolute arbitrary power.” While Locke does have a chapter on slavery his view is that it cannot be consented to: “A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. “ Legislation cannot be arbitrary and whimsical: “Secondly, The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges.” Locke’s third point is that the taking of property from a man must be by his consent: “The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own.” Taxation,for Locke, is consensual. “It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it.” Note that Locke says it should be proportionate. This could be achieve through a neutral tax, i.e., one that acts as a price, but as Ludwig von Mises demonstrated in Human Action, that is an impossibility. It could also be achieved through a flat, or proportional tax. A graduated tax, however, demands that some pay a greater share of their wealth for taxes. This has the effect of inhibiting the accretion of wealth not just for the rich but also for the poor, who have less incentive to rise out of the lower tax brackets. Taxation is to be “with his own consent, i. e. the consent of the majority, giving it either by themselves, or their representatives chosen by them: for if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government: for what property have I in that, which another may by right take, when he pleases, to himself?”
Legislatures cannot transfer the power to make laws to other agencies. It is arguable that government regulations, as presently implemented, confer legislative power on administrative agencies. Is the FCC’s push to bring Comcast, a company that I personally dislike very much, under its purview as a telecom, an attempt at legislation? It could probably be argued both ways.
Locke’s reasoning for this position is “The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others.” These are the bounds which the trust, that is put in them by the society, and the law of God and nature, have set to the legislative power of every common-wealth, in all forms of government.
Of the Legislative, Executive, and Federative Power of the Common-wealth. Locke apparently considers what he calls the federative power to be equivalent to what we call the judicial power. However, in Locke’s conception it is not the courts that are supreme, but the legislature. If an unjust or unpopular law is passed, it is up to the people to repeal it, either directly or through their legislatures.
Of the Subordination of the Powers of the Common-wealth. In 149 Locke asserts the doctrine of legislative supremacy:
“THough in a constituted common-wealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them: for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject: for no man or society of men, having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; when ever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve, what they have not a power to part with; and to rid themselves of those, who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society. And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.”
Of Prerogative. I’m not quite sure how much of this is applicable, if at all, to America, either then or now.
Of Paternal, Political, and Despotical Power, Considered Together. Locke considers the distinctions among the three types of power.
Of Conquest. This is interesting, but not relevant to the topics I’m concerned with. Of Usurpation. Locke compares usurpation to conquest: “AS conquest may be called a foreign usurpation, so usurpation is a kind of domestic conquest, with this difference, that an usurper can never have right on his side, it being no usurpation, but where one is got into the possession of what another has right to.”
Of Tyranny. Locke gives in 190 this definition of tyranny: “AS usurpation is the exercise of power, which another hath a right to; so 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.”
Note that while a decision such as Kelo v. City of New London, does not transfer property from the owner to the ruler, it does transfer property from the owner to the ruler’s cronies, and is thus on the way to tyranny.
If I understand 202 correctly, Locke believes that even lawful warrants may be resisted: “Where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed.” No-knock warrants, which allow the police to enter unannounced, would, in Locke’s view, be particularly noxious. Of the Dissolution of Government. It is here that we find the philosophical grounds for the Glorious Revolution of 1688 and the American Revolution of 1776. I’m only going to mention part of the argument here. You can either buy the book, or read it online. Section 222 says: “The reason why men enter into society, is the preservation of their property; and the end why they chuse and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence.”
It is violence against the people, unjustly depriving them of their property, that justifies revolutionary activity.
In 225 there is a passage that will become the introduction to Jefferson’s list of abuses in the Declaration: “Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty, will be born by the people without mutiny or murmur. But if a long train of abuses, prevarications and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going; it is not to be wondered, that they should then rouze themselves, and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected; and without which, ancient names, and specious forms, are so far from being better, that they are much worse, than the state of nature, or pure anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.”
It’s too bad that the guy on the bus that day had not actually read Locke, he might have found him interesting, and he might have gotten the girl.
*I make a reference to Locke saying that the legislatures are bound by their own laws. In preparing this I may have confused a passage from the Federalist with Locke. If you read Locke, and come across the passage, please leave a comment.
Next up are the founding documents, The Declaration of Independence. The Articles of Confederation, The Constitution, and The Federalist Papers. I may add Marbury v. Madison, or hold off till later. Subsequent books will be John Ringo’s Live Free or Die,