John Locke

1
John Locke

• Two Treatises of Government
• 1689 (?)

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Lecture Outline

• John Locke in Context
• Enlightenment
• English Civil War (1624-49), Glorious
  Revolution (1688)
• Divine Right of Kings The First Treatise
• Second Treatise Sketch of the argument
• Conclude Brief Contrast with Hobbes

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Locke in Context1.2. Civil War and Glorious
Revolution

• English civil war
• Religious controversies Catholics v.s
  Protestants, Anglican Church vs Protestants and
  Catholics
• Parliament v.s King
• Charles I executed in 1649. Oliver Cromwell,
  leader of the New Model Army, installs himself as
  Lord Protector of the Commonwealth.
• Cromwell continues to dissolve parliaments when
  they oppose him. (Not too different from previous
  Kings.)
• Cromwell dies, Charles II (exiled in France)
  invited to assume the throne. 1660 Stuart
  Restoration.

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• Charles II dies 1685. His brother, James II, a
  Catholic, comes to the throne.
• James II could not have picked a worse time to
  come to the throne. To many Protestants, there
  was no such things as a moderate Catholic
  monarch- all were inclined towards tyranny and
  despotism.
• http//www.open2.net/civilwar/6.3.aftershocks.html

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• Concerned that James would sire an heir, and
  England would remain under Catholic dynasty,
  Protestant leaders turn to Mary and William of
  Orange (protestant) to invade England and assume
  the throne.
• William lands in England with a force of 15,000
• Support for King James crumbles. The Glorious
  Revolution is over without a shot.

6

• The question Whats the proper relation between
  Parliament and King?
• A new regime (arrangement of offices) was
  required.
• Lockes political writings, set forth in 1689,
  became an influential source and justification of
  the new constitution.

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• The legislation which was passed between 1689-
  1701 and which clarified the respective rights of
  Crown and Parliament still forms the bedrock of
  British politics to the present day.
• http//www.open2.net/civilwar/6.3.aftershocks.html

8

• As we will come to see, Lockes writings also
  influenced the American revolutionaries,
  specifically the ideas in the Declaration of
  Independence (1766).

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• Lockes Preface makes the connection between the
  Two Treatises and the events of 1688 clear.
• These treatises I hope are sufficient to
  establish the Throne of our Great Restorer, Our
  present King William to make good his title, in
  the Consent of the People, which being the only
  one of all lawful governments, he has more fully
  and clearly than any Prince in Christendom.

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2. Divine Right of Kings The First Treatise

• Sir Robert Filmer's most important work was
  Patriarcha. Written around 1628 and left in
  manuscript it was finally published in 1680 as
  Tory Royalist propaganda.
• Lockes First Treatise is an extended attack on
  Filmers argument.

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The Divine Right thesis

• Robert Filmer the kingly power is by the law of
  god, so it hath no inferior law to limit it
  (Patriarcha, 281).

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• Filmers great position is that Men are not
  naturally free
• (Locke, First Treatise, Chp.II, sec. 6)
• Lockes contrary argument
• men are naturally free and independent.

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• Government has no other end but the preservation
  of Property (II.94)
• What are not ends of government?
• Virtue and friendship (Aristotle)
• To Spare the conquered and battle down the
  proud (Virgil)
• Knowledge of God (Aquinas)

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• unless the lord and master of them all should,
  by a 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 (sec. 4).
• Tis in vain then to talk of subjection and
  obedience, without telling us whom we are to
  obey (First Treatise, sec 81).
• If one declares the wise should rule, who are
  the wise among us? How will we (unwise) recognize
  them?

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• State of nature always exists
• It is plain that the world never was, nor ever
  will be, without numbers of men in that state
  (II.14).
• wherever there are men, however associated, that
  have no . . . decisive power to appeal to, there
  they are still in the state of nature (II. 89).
• Afghanistan outside of Kabul?
• Iraq, especially the western provinces?
• Relations between sovereign states (e.g., Israel
  and Lebanon)?

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• State of nature characterised by
• Freedom within the bounds of the law of nature
  (not subject to another mans will)
• Equality.
• Does not mean equal in knowledge, or virtue, or
  goodness
• See II.54 Though I said men are by nature
  equalI cannot be supposed to understand all
  sorts of equality.

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4. Brief Contrast with Hobbes

• Hobbes
• State of Nature is a state of war
• Men have a natural proclivity to harm one
  another
• No natural justice, no exclusive right to
  property prior to civil society
• No natural limit to what you can claim in
  natureeven others bodies
• The Sovereign prince is above the social contract
  and not bound by it. Limitless authority
• No right to revolution

• Locke
• State of nature is not the state of war
• Men do not have a natural proclivity to harm one
  another
• Natural right to property exists prior to civil
  society
• Natural limit to property (spoilage and waste),
  and we each have a property in ourselves that
  excludes other from using us as tools.
• People are sovereign, and the government is
  limited by the terms of the social
  contractprotection of property
• People may appeal to heaven (revolt)

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• We are born free as we are born rational
• not that we have actually the exercise of
  either (II.61).
• The greater part of mankind are no strict
  observers of equity and justice (II.123).
• He that is not come to the use of his reason,
  cannot be said to be under this law the law of
  nature (II.57).

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• Those who cannot reason for themselves ought to
  be put under the tuition and government of
  others (II.60).
• See Hooker quotation at II.136 unless one
  presumes man to be, in regard of his depraved
  mind, little better than a wild beast the laws
  will not be good.

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John LockeLecture Part Two

• Political Society
• Or, emerging from the state of nature

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Outline

• Causes of civil society
• Structure of government
• Prerogative power, what is it?
• Right to revolution
• Comparison with Aristotle
• Acquisition
• Family
• Rule of law
• Purpose of political life

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• How is the state of nature characterized?
• Peace, mutual help, benevolence
• But only if law of nature is effective
• Problem
• law of nature (reason) is not effective
• . 123.  IF man in the state of nature be so
  free, as has been said if he be absolute lord of
  his own person and possessions, equal to the
  greatest, and subject to no body, why will he
  part with his freedom? why will he give up this
  empire, and subject himself to the dominion and
  controul of any other power?

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• Three things wanting (missing) in the state of
  nature. Sec. 123
• 1. No known settled law allowed by common
  consent to be the standard of right and wrong
• Why doesnt the law of nature satisfy this
  requirement?. See next
• 2. No known and indifferent judge with authority
  to determine differences according to established
  law
• for every one in that state being both judge and
  executioner of the law of nature, men being
  partial to themselves, passion and revenge is
  very apt to carry them too far, and with too much
  heat, in their own cases as well as negligence,
  and unconcernedness, to make them too remiss in
  other mens.

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• 3. Poor execution of the Law of nature
• In the state of nature there often wants power
  to back and support the sentence when right, and
  to give it due execution. They who by any
  injustice offended, will seldom fail, where they
  are able, by force to make good their injustice
  such resistance many times makes the punishment
  dangerous, and frequently destructive, to those
  who attempt it. Sec 126

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• . 127.  Thus mankind, notwithstanding all the
  privileges of the state of nature, being but in
  an ill condition, while they remain in it, are
  quickly driven into society.

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• Consent required to enter society
• Men consent to give up two powers
• A. to do what he wants to preserve himself and
  others within the law of nature call this
  Liberty?
• Now he will be regulated by the laws of the
  community
• B. the power to punish crimes committed against
  the law of nature call this Executive Power?
• Now the community will exercise this power
  through their government
• and engages his natural force, (which he might
  before employ in the execution of the law of
  nature, by his own single authority, as he
  thought fit) to assist the executive power of the
  society,

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• . 131.  But though men, when they enter into
  society, give up the equality, liberty, and
  executive power they had in the state of nature,
  into the hands of the society, to be so far
  disposed of by the legislative, as the good of
  the society shall require yet it being only with
  an intention in every one the better to preserve
  himself, his liberty and property

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Locke is arguing for Limited Government

• We cannot give to society more power than we had
  in the state of nature.
• This limits the power of government
• Since had no right to kill ourselves in nature,
  apparently the govt has no right to kill us if
  we are innocent
• Question
• Where does the power to make laws come from?

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• We did not have the power to make laws in the
  state of nature. A law already existed (The Law
  of Nature)
• So whats the source of legislative power?
• Merely the recognition of the ineffectiveness of
  the law of nature?

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• Consenting to give up two rights
• Execution
• Liberty
• We dont give up the right ot demand compensation
• Review sec. 11
• Only this second right was directly tied to
  self-preservation
• Executing the Law of Nature was not tied directly
  to the victims self-preservation.

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• by the right he has of preserving all mankind
  . . . every man, in the state of nature, has a
  power to kill a murderer,
• the other right of taking reparation,. .
  .belongs only to the injured party .

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• Every one, as he is bound to preserve himself,. .
  .when his own preservation comes not in
  competition, ought he, as much as he can, to
  preserve the rest of mankind (sec.6)
• the law of nature. . .willeth the peace and
  preservation of all mankind (sec.7)

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• It is not the right of self-preservation that
  gives s the right to kill others, or it does, but
  only insofar as we are members of the human
  species. The harm is done to the whole of
  mankind, not to you, the individual.
• But men blur this distinction. When they punish,
  they do so out of personal motive, not to protect
  all men from like harm.

34

• What impact does this have on Lockes argument?
• The executive power is to be guided by its
  natural end.
• Its end in the state of nature is to protect ll
  mankind (not any particular individual)
• If a particular individuals life (or proprty) is
  inconsistent with the good of the whole, the good
  of the whole must take preendence.

35

• 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. Sec.134
• it is fit that the laws themselves should in some
  cases give way to the executive power, or rather
  to this fundamental law of nature and government,
  viz. That, as much as may be, all the members of
  the society are to be preserved (sec.159)
• and to punish the breach of the law of nature in
  others, so as (according to the best of his
  reason) may most conduce to the preservation of
  himself, and the rest of mankind. So that the end
  and measure of this power, when in every mans
  hands in the state of nature, being the
  preservation of all of his society, that is, all
  mankind in general it can have no other end or
  measure, when in the hands of the magistrate, but
  to preserve the members of that society in their
  lives, liberties, and possessions 171

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• The Point of this?
• 1. by joining society you agree to serve in the
  police or army, even if this means near certain
  death
• the serjeant, that could command a soldier to
  march up to the mouth of a cannon, or stand in a
  breach, where he is almost sure to perish, can
  not command that soldier to give him one penny
  of his money . . . because such a blind
  obedience is necessary to that end, for which the
  commander has his power, viz. the preservation of
  the rest but the disposing of his goods has
  nothing to do with it. 139
• (absolute power is NOT inconsistent with
  legitimate power. But absolute power, to remain
  legitimate, cannot be arbitrary power) even
  absolute power where it is necessary, is not
  arbitrary 139
• The power of punishing he wholly gives up, and
  engages his natural force, (which he might before
  employ in the execution of the law of nature, by
  his own single authority, as he thought fit) to
  assist the executive power of the society, as the
  law thereof shall require 130

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• 2. Although you joined society to protect YOUR
  property, it can, with right, be taken from you
  or destroyed by the state under certain
  circumstances.
• many accidents may happen, wherein a strict and
  rigid observation of the laws may do harm (as
  not to pull down an innocent mans house to stop
  the fire, when the next to it is burning). (sec
  159)

38

• In this case, Locke calls such a decision
  Prerogative
• This power to act according to discretion, for
  the public good, without the prescription of the
  law, and sometimes even against it, (160)
• (at .210 he calls this an arbitrary power . .
  .to do good)

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• There is no absolute guarantee that society will
  protect either you or your property.
• Under certain circumstances, it is justified in
  threatening your life and destroying your
  property
• What happened to the whole purpose of joining
  society?
• Government power, and especially prerogative,
  must not be arbitrary (see sec.150)

40

• important difference between civil society and
  state of nature--power is not arbitrary in civil
  society (sec 135)
• T. Hobbes solution (Leviathan) looks like civil
  society, but it is no better than the state of
  nature. In fact, it is worse. Why? (See sec 137)

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Structure of Government

• Compare Locke with Aristotle on regime types
• The majority,. . .may employ all that power in
  making laws for the community from time to time,
  and executing those laws by officers of their own
  appointing and then the form of the government
  is a perfect democracy or else may put the power
  of making laws into the hands of a few select
  men, and their heirs or successors and then it
  is an oligarchy or else into the hands of one
  man, and then it is a monarchy (sec 132)
• A fourth kind (representative government?)
• if the legislative power be at first given by
  the majority to one or more persons only for
  their lives, or any limited time,

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• Legislative power is the supreme power in
  government.
• Why? Legitimate political power must rest on
  consent of the governed.
• It is sufficient, however, that representatives
  makes laws for us.
• This seems to be Lockes preferred regime type,
  but he does not explicitly defend this choice.
• Our consent (election) gives rep.s their
  authority to make laws
• Once the form of government has been chosen, the
  people are no longer directly involved in
  governing (see sec. 157)

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Limits on Power

• First, They are to govern by promulgated
  established laws, not to be varied in particular
  cases, but to have one rule for rich and poor,
  for the favourite at court, and the countryman at
  plough.
• Secondly, These laws also ought to be designed
  for no other end ultimately, but the good of the
  people.
• Thirdly, They must not raise taxes on the
  property of the people, without the consent of
  the people, given by themselves or their
  deputies. And this properly concerns only such
  governments where the legislative is always in
  being, or at least where the people have not
  reserved any part of the legislative to deputies,
  to be from time to time chosen by themselves.
• Fourthly, The legislative neither must nor can
  transfer the power of making laws to any body
  else, or place it any where, but where the people
  have.

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Limits on Power

• Legislature
• Cant be arbitrary over lives and fortunes
• Thus the law of nature stands as an eternal rule
  to all men, legislators as well as others. The
  rules that they make for other mens actions,
  must, as well as their own and other mens
  actions, be conformable to the laws of nature, i.
  e. to the will of God, of which that is a
  declaration and the fundamental law of nature
  being the preservation of mankind, no human
  sanction can be good or valid against it. 135
• Cant rule by arbitrary decree
• For the law of nature being unwritten, and so
  no-where to be found, but in the minds of men
  they who through passion, or interest, shall
  miscite, or misapply it, cannot so easily be
  convinced of their mistake, where there is no
  established judge
• Legisl. Must decide the rights of the subject,
  by promulgated, standing laws, and known
  authorised judges. sec 136

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• 3. cannot take from any man part of his property
  without his own consent (includes, no taxation
  without consent)
• Men therefore in society having property, they
  have such right to the goods, which by the law of
  the community are theirs, that no body hath a
  right to take their substance or any part of it
  from them, without their own consent without
  this they have no property at all for I have
  truly no property in that, which another can by
  right take from me, when he pleases, against my
  consent. (sec 138)
• 4. Cannot transfer power of making laws to other
  hands

46

• Lockes argument is for limited government
• But it must have real power necessary to govern
• Review definition of political power, sec. 3

47

• Federative power
• Concerns relations with foreign powers
• Enemy actions cannot be predicted.
• This power requires wide discretion, cant be
  anticipated by laws sec (147)
• Requires prudence. See Aristotle, III.4.17-18.

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Tyranny and Revolution

• Tyranny exercise of power beyond right
• E.g. when the governor rules in his own rather
  than the common advantage, or when he makes not
  the law, but his will, the rule (sec. 199).
• But if all the world shall observe pretences of
  one kind if a long train of actions show the
  councils all tending that way toward tyranny
  how can a man any more hinder himself from being
  persuaded in his own mind, which way things are
  going ? sec. 210

49

• If Lockes theory of government is correct, we
  now have an objective standard by which to
  determine whether a government is just or unjust.
• Justice, at this level, does not depend upon the
  time or the culture.
• If the legislature does not rest on the consent
  of the people, the laws have no legitimate
  authority.
• If the government is not protecting property, it
  has violated the purpose of government

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• we now have a common measure by which to assess
  the legitimacy and actions of government and
  fellow citizens which does not require
  metaphysical knowledge or religious conversion or
  sectarianism. It creates a universal consensus
  concerning the minimum requirements for justice.
• Harry V. Jaffa