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Locke 2

The Structure of the Second Treatise of Civil Government

Here is the subject matter of the various chapters of the Second Treatise. You are not going to read all of them for this course, but you might as well have a map, as it were, of the route which Locke takes.

  • Chapter 1 summarizes Book I and gives the definition of Political power
  • Chapter II-VII the bases of government
  • Chapters VIII-XIV the nature of political power and legitimate civil government
  • Chapter XV recapitulates the fundamental distinctions between paternal. political and despotic power.
  • Chapter XVI-XVIII elaborates the nature of illegitimate civil government It specifies three forms of such illegitimacy: 1. an unjust foreign conquest, 2. internal usurpation of political rule and 3. tyrannical extension of power by those who were originally legitimately in power.
  • Chapter XIX gives the conditions under which legitimate revolution may occur.

We are going to focus our attention on the first five chapters in which Locke establishes the framework for determining what the function of a legitimate civil government is (and hence how to distinguish between legitimate and illegitimate civil government) and the end of the book where he discusses the circumstances in which rebellion is legitimate. We begin at the beginning, with the framework.

The State of Nature

Trying to figure out what the proper or legitimate role of civil government is going to be difficult if one is going to examine the vast complexity of existing civil governments. How should one proceed? One strategy is to consider what life is like b efore there is 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. This is the strategy which Locke, following Hobbes and others pursues. The state i n which there is no natural government is the state of nature. Locke describes this in the second chapter of the Second Treatise. It is a state of political equality in which there is no natural superior or inferior. From this equality f lows the obligation to mutual love which, and the duties they owe one another, and the great maxims of justice and charity. Was there ever such a state? It is plain that both Hobbes and Locke would answer this question affirmatively. Whether Locke und erstood his state of nature as a real stage in the historical development of states I am not altogether sure. Another possibility is that the state of nature is not a real historical state, but rather a theoretical construct, intended to help determine t he proper function of government. If one rejects the historicity of states of nature, one may still find them a useful analytical device.

Human nature and God's purposes

According to Locke, God created man and we are, in effect, God's property. It is God who determines how long one of his creatures will continue to exist in his world, thus suicide is unacceptable. The chief end set us by our creator as a species and a s individuals is survival. A wise and omnipotent God, having made us and sent into this 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 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.

It follows immediately that "he has no liberty to destroy himself, or so much as any creature in his possession , yet when some nobler use than its bare possession calls for it." (II. ii. 5) If one takes survival as the end, then we may ask what are th e means necessary to that end. On Locke's account, these turn out to be the rights to life, liberty, health and property. Let us think about how this is supposed to work. If I take away your life, then rather clearly you do not survive. So, life and su rvival are so closely linked that the continuation of life amounts to a definition of survival. So, how is one going to preserve life? Well, clearly health is related to the preservation of life. What often comes before death is illness. It is possibl e for me to take away your life, and it is probably also possible for me to injure your health. If I put you in a dungeon where you never see daylight and it is very damp, and... well you can imagine how this might injure your health. Prisons also bring up the topic of liberty. If you can't get around to get your food or make a living, then it will be up to me to feed you. So, in that sense, I suppose your life is in my hands, where, according to Locke, it does not belong. Property? Well, I did say " your food" didn't I? Locke starts out with the notion that your body is yours, and goes on from there to food and other things necessary for survival. So, you can see how you might argue, that life, liberty, health and property might be intimately conn ected with your survival. Since the end is set by God, on Locke's view we have a right to the means to that end. This is the justification of these rights. These are natural rights, that is rights which we have in a state of nature before the introduct ion of civil government. These rights are based not only on having the means to the end for which God put us here, but our natural equality.

The Law of Nature

If it is clear to me that God's purpose for me on earth is my survival and that of my species, and that 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. Equ ally, 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. It is the Golden Rule, interpreted in terms of natural rights. Thus Loc ke writes: "The state of nature has a law of nature to govern it, which obliges everyone: 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 anot her in his life, health, liberty or possessions..." (II, 6) Locke tells us that the law of nature is revealed by reason. Locke makes the point about the law that it is what represents what is best for us. If it did not, he says, the law would vanish for it would not be obeyed. It is in this sense, I think, that Locke means that reason reveals the law. If you reflect what is best for yourself and others given the goal of survival and our natural equality, you will come to this conclusion.

This law of nature, like civil laws can be violated. I can choose not to respect your rights to property or life. So, when there are violations of the law of nature, who is going to enforce the law? Remember that in the state of nature there are no police. Why? Because there is no civil government. Similarly, there are no government appointed judges or prosecuting attorneys. Yet without some mechanism for enforcing the law of nature, the law is useless. Locke's answer is that in the state of na ture each of us has the right to enforce the state of nature in our own case. We are the police, the prosecutor, the judge and the executioner all rolled into one. We may, Locke tells us, and this is important for his purposes, help one another. We may intervene in cases where our own interests are not directly under threat to help enforce the law of nature. Still, the person who is most likely to enforce the law under these circumstances is the person who has been wronged.

Are there likely to be problems with someone enforcing the law in a state of nature when they are the victim who has been wronged? Well, yes, that is likely enough. The basic principle of justice here is that the punishment should be proportionate to the crime. But when the victim is judging the seriousness of the crime, are they not likely to judge it of greater severity than might an impartial judge? This is clearly one of the problems, perhaps the central problem, with the state of nature.

The State of War

In Chapter 3, Locke defines the state of war. This is a state in which someone has a sedate and settled intention of violating someone's right to life. Such a person puts themselves into a state of war with the person whose life they intend to take. In such a war the person who intends to violate someone's right to life is an unjust aggressor. Is there a difference between a criminal and an unjust aggressor in a state of war? We tend to think of wars as taking place between large groups, like nations. But such is not the case here. Thus the line between a criminal who is an individual violating someone's rights and an unjust aggressor is blurred. What are the implications of having "a sedate and settled intention" to violate someone's rights? How does this differ, for example, from doing it on the spur of the moment? One answer is that one could expect a pattern of violations of rights to emerge from a sedate and settled intention. I think this is one difference between a single violation of a state of nature which deserves punishment and a state of war.

The State of Slavery

The state of slavery is one which we will examine in detail in the next unit. At this point, it is worth noting that just as it is important to distinguish between legitimate and illegitimate civil government it is equally important to distinguish between legitimate and illegitimate slavery. It is this contrast that is really important to Locke. For among the most important charges that the Whigs made against the Stewart governments was that the kings sought to be absolute monarchs who were attempting to illegitimately enslave the English people. It becomes important then to draw the contrast, and show what legitimate slavery looks like. How then does one become justly or legitimately enslaved?

It is important to note that there is only a single way to become a legitimate slave on Locke's account. In order to do this one must be an unjust agressor engaged in the attempt to violate the rights of life, liberty, health and property of innocent victims. Then, in cases where an unjust aggressor is defeated in war, the just victor has the option to either kill the aggressor or legitimately enslave him. Note how strong this condition is. It means that it is not any prisoner of war that can be legitimately enslaved, but only those who were engaged in an systematic and illegitimate effort to violate the rights of others.

Slavery is the state of being in the absolute or arbitrary power of another. What does this mean? It means that the master has the legitimate power to kill the slave. Locke tells us that the state of slavery is the continuation of the state of war between a lawful conqueror and a captive, in which the conqueror delays to take the life of the captive, and instead makes use of him. This is a continued war because if conqueror and captive make some compact for obedience on the one side and limited power on the other, the state of slavery ceases. The reason that slavery ceases with the compact is that "no man, can, by agreement pass over to another that which he hath not in himself, a power over his own life." (II. 4, 24) So, a slave cannot make an agreement or contract to be a slave in Locke's sense of this term. If there is a legitimate contract, it is going to be for some state other than slavery, such as drudgery.

 

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