Lesson 8: Political Moderation? Locke's Second Treatise
A. Basic Themes
Locke transformed the Hobbesian philosophy into a more palatable and balanced philosophy of natural rights. It is in the Lockean form that many Americans came to know about rights. And Locke's philosophy contains a fundamental ambiguity that pertains to the alternatives mentioned above. That is, the very tension over the autonomy of the person and the workmanship of God is played out in the writing and interpretation of Locke.
Locke sought to find a solution to the problem of politics that would restore peace to a country divided by wars of religion. The tolerance of religious belief required, in his mind, the lowering of the goal and mission of the temporal order, away from the inculcation of virtue and the defense of the faith to the protection of the temporal welfare of its citizens, that is to the protection of the rights to life, liberty and property of its citizens . By removing the matter of religious contention from the civil sphere Locke hoped to quell the disturbances inflicted upon Europe because of intolerance. Hobbes, however, removed contentious matters by making the sovereign absolute over the determination of the beliefs of its citizens. It was Locke who overcame the inconsistencies in this account, and sought to place structural and formal limits upon the sovereign political power and to bind the sovereign to the respect of rights to life, liberty and property. The division of powers, taxation with representation, limited prerogatives of the state power balanced by a "right to revolution" are all part of the Lockean system. For Hobbes rights are fundamental moral claims against others; Locke adds to this the claim of the individual against the state, at least when a "long train abuses" are perceived by a majority and rouse it to act. Locke's more moderate and reasonable account of human rights has appealed to generation of political statesmen and thinkers. John C. Murray, in discussing the First Amendment of the U. S. Constitution, calls the concepts "articles of peace," reasonable devices learned through experience, to limit government. He rejects certain "theologies of the First amendment," which posit, for example, the ultimate subjectivity of religious truth . Locke has been interpreted along both lines. However, the same seed of radical autonomy as the basis for human rights remains in Locke.
Like Hobbes, Locke derives the principles of limited government from a hypothetical state of nature . This original state of nature is said to be a state of "perfect freedom." By freedom Locke here means no more than an absence of restraint. Locke mentions in the same passage with the perfect freedom, the bounds of a natural law. This is to distinguish "liberty" from "license." The natural law which initially guides men in the state of nature is to refrain from harm: "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." The restraint demanded by natural law derives from an additional characteristic of the state of nature: in the state of nature men are equal in addition to being free . Locke makes clear that equality means equal jurisdiction, or the absence of subordination and subjection. The basis for this mutual respect and recognition is the fundamental problem, since it is the basis for natural law.
The key difficulty in interpreting the philosophy of John Locke pertains to the foundation of natural rights and the rationale for mutual restraint. Locke in fact gives a two-fold rationale and foundation. On the one hand, he speaks of man as God's workmanship, and from this axiom derives the right to life, liberty, and property as essential to the divine moral order; on other occasions he simply appeals to the primacy of self-preservation and unfolds from radical autonomy the list of rights and the self-interested basis for mutual respect.
In the first model, the basis for equal respect is divine workmanship, and the order of creation. Locke argues that all creatures are equal under God and occupy the same rank or status as "creature" . Thus, no one can assume to take the position of God and rule over others. This argument from the order of creation reflects a pre-modern understanding of equality. Men are neither beasts nor gods, but occupy equally a ground mid-way between . It is neither appropriate to act as a god nor to treat others as beasts or inferior creatures. Locke explicitly uses this pre-modern image. In light of this order of creation, man can make no claim to absolute dominion over his fellow creature. Mutual respect depends upon the recognition of one's status as creature, along with others, before the Creator. That is, man cannot claim the type of superiority that would authorize the destruction or arbitrary use of another, and rights protect this status.
But Locke says that the grasp of "natural law" does not depend on divine revelation nor does it depend on knowledge of God's promulgated law and sanctions. This content can be appreciated independently of the workmanship model. For to deny the mutuality of equal right is to propel oneself into a state of war with others. And by such a declaration one has "exposed his Life to the others Power to be taken away by him" (2.16). To put oneself in such an insecure state is most unreasonable and dangerous. One is open to being treated like a noxious beast . It is more safe, more reasonable to acknowledge the equality of rights. Thus, mere self-interest would counsel mutuality and restraint. Locke refers to the law of nature as simply the law of reason and common equity (2.8): the law of nature is the reasonable restraint of common equity which will establish mutual security (2.8). It is discovered through the person's own desire for safety and security. The basis for restraint is fear of harm and self-interest. According to this model of rights, selfish interest, comfortable preservation, is the basis for my claims. Enlightened self-interest leads me to recognize the equal right of others to their life, liberty and property .
The legacy of Locke is therefore ambivalent. The advocate of limited government, and an apparent friend of the theistic tradition, Locke nevertheless underwrote a model of radical human autonomy in which freedom dominates the moral order. Locke's philosophy of human rights is derived from a subjectivist account of the good; it lowers the goal of the state to a supposedly neutral position; it imposes a minimal obligation of non-harm; and ultimately does encourage self-interest. The minimal obligations embodied in civil law become the extent of morality; the wide sphere of private life must come to occupy the bulk of human energies. With Locke, such freedom was aimed at unlimited acquisition of property and the self found its affirmation in labor and the "work ethic," or what Leo Strauss called "the joyless quest for joy." But such terms as equal freedom and mutual respect came to be transformed under the inspiration of Rousseau and Kant to mean much more than civic liberty and protection of private property. In contemporary American jurisprudence they have come to promote the existence of what University of Illinois Law Professor Gerard Bradley has recently referred to as the "erotic self."14
1. John Locke, An Essay Concerning Human Understanding. Edited by Peter H. Nidditch. The Clarendon Edition of the Works of John Locke. Oxford: Oxford University Press, 1975. References are to Book, chapter and section, e.g., (1.2.1) refers to Book I, chapter 2, section 1.
2. See for example, Cicero, De natura deorum 1.1; Parmenides, "Proem"; Plato, Meno 98b.
3. See for example, Leo Strauss, Natural Right and History Chicago: University of Chicago, 1952., pp. 89, 123-125.
4. Cf. Essay 1.1.4 with Meno 84.
5. 1.1.6. Cf. 4.12.11, "Morality is the proper business of mankind."
6. John Locke, Letter concerning Toleration.
7. John Courtney Murray, We Hold These Truths, (New York: Sheed and Ward, 1960). pp. 48-56.
8. "To understand Political Power right, and derive it from its Original, we must consider what state all Men are naturally in, and that is a state of perfect Freedom 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 on the Will of any other Man." John Locke, Two Treatises of Government, edited by Peter Laslett, (Cambridge: Cambridge University Press, 1968). (2.4)
9. "A State also of Equality, wherein all 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." (2.4)
10. 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 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 ours. (2.6)
11. See Harry Jaffa, "Equality as a Conservative Principle," in How to Think about the American Revolution, (Durham, N.C.: Carolina Academic Press, 1978) pp. 13-48.
12. 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 Lyon; 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. (2.16)
13. See also Locke's Essay Concerning Human Understanding ed. Peter Niditch (Oxford: Clarendon Press, 1975), I.3.6: "It is no wonder, that every one should, not only allow, but recommend, and magnifie those Rules to others, from whose observance of them, he is sure to reap Advantage to himself. He may, out of Interest, as well as Conviction, cry up that for Sacred; which if once trampled on, and prophaned, he himself cannot be safe nor secure."
14. Gerard V. Bradley, "The Constitution & the Erotic Self," First Things no. 16 (October 1991), pp. 28-32.
B. Outlines and Study Guides:
What is the basis for rights?
What is the end or purpose of civil government?
1. Redemptor Hominis, #21:
JPII: "Nowadays it is sometimes held, although wrongly, that freedom is an end in itself, that each human being is free when he makes use of his freedom as he wishes, and that this must be our aim in the lives of individuals and societies. In reality freedom is a great gift only when we know how to use it consciously for everything that is our true good. Christ teaches us that the best use of freedom is charity, which takes concrete form in self-giving and in service."
2. Second Treatise #3:
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 defense of the Common-wealth from foreign Injury, this only for the Publick Good.
3. Second Treatise #4:
A State also of Equality, wherein all 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. To understand Political Power right, and derive it from its Original, we must consider what state all Men are naturally in, and that is a state of perfect freedom 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 on the Will of any other Man.
4. Second Treatise #6:
But though this be a State of Liberty, yet it is not a State of Licence, though Man in that State have an uncontrollable 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. 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 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 ours. Every one as he bound to preserve himself, and not to quit his station willfully; so by like reason when his own Preservation comes not into competition, ought he, 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.
5. Second Treatise #7:
And that all Men may be restrained from invading others Rights, and from doing hurt to one another, and the Law of Nature be observed, which willeth the Peace and preservation of all Mankind, the Execution of the Law of Nature is in that State, put into every Mans 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.
6. Second Treatise #8:
In 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 tyger, 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 "LN"
7. Second Treatise #11:
Every Man has a Power to punish the Crime, to prevent its being committed again, by the Right he has of Preserving all Mankind, and doing all reasonable things he can in order to that end: And thus it is, that 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 Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can no Society nor Security: and upon this is grounded the great Law of Nature, Who so sheddeth Mans blood, by Man shall his blood be shed. And Cain was so fully convinced, that every one had a Right to destroy such a Criminal, that after the Murther of his Brother, he cries out, Every one that findeth me, shall slay me; so plain was it writ in the Hearts of all Mankind.
8. Second Treatise #12:
It is certain that there is such a Law, and that too, as intelligible and plain to a rational Creature, and a Studier of that Law, as the positive laws of Common-wealths, nay possibly plainer; As much as Reason is easier to be understood, than the Phansies and intricate Contrivances of Men, following contrary and hidden interests put into words; For so truly are a great part of the Municipal Laws of Countries, which are only so far right, as they are founded on the Law of Nature, by which they are to be regulated and interpreted.
9. Second Treatise #16:
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 setled Design, upon another Mans 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 others Power to be taken away by him, or any one that joyns with him in his Defence, and espouses his Quarrel: it being reasonable and just that I should have a Right to destroy that which threatens me with Destruction. For by the Fundamenttal Law of Nature, Man being to be preserved, as much as possible, when all cannot be preserv'd, 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 Lyon; 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.
10. Second Treatise #17:
And hence it is, that he who attempts to get another Man into his Absolute Power, does thereby put himself into a State of War with him; It being to be understood as a Declaration of a Design upon his Life. 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. to make me a slave. To be 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: so that he who makes an attempt to enslave me, thereby puts himself into a State of War with me. 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: As he that in the State of Society, would take away the Freedom belonging to those of that Society or Common-wealth, must be supposed to design to take away from them every thing else, and so be looked on as in a State of War.