226 Notes - Locke [1] John Locke - 1632-1704. 226 Notes - Locke [2] Locke’s life in brief: Born of...

226 Notes - Locke [1]

•

John Locke - 1632-1704


Locke’s life in brief:

• Born of Puritan parents (1632)• Father fought in the civil wars, on the Parliamentary side (Cromwell’s)• studied philosophy and then medicine at Oxford• became personal physician to Lord Ashley Cooper, first Earl of

Shaftesbury• Exiled to Holland for some years under political suspicion• wrote on Human Understanding as well as on politics• A bachelor throughout his life; lived peacefully and had extensive

correspondence and conversation with the great intellectual people of the time.

• His First and Second Treatises of Civil Government (1690) are among the most famous works on politics in the English language

• He is considered the father of Political Liberalism (Classic variety)• Died peacefully in the house of another nobleman (1704)

•


• Political Power:

• “a Right of making Laws (with Penalties including Death)

• - all this only for the Public Good”

• [Note the claim that it is a matter of a “right” - not a natural phenomenon; note also that the “for the Public Good” bit is a debatable addition. We can take it that rulers claim, and are pretty generally recognized as having the “right” to make and enforce laws.

• But whether they will really use it for “public good” needs to be discussed, not just assumed.]

•

226 Notes 3 - Locke [4]

• Locke’s State of Nature

• - (1) “a State of perfect Freedom to order their Actions, and dispose of their Possessions and Persons as they think fit - without asking leave, or depending upon the Will of any other Man”

• [Is this description, idealization, or normative?]

• - (2) “within the bounds of the Law of Nature”

• Question: What is the force of these “bounds”? Does Locke mean that people generally obey them?

• (3) “Equality”: all the Power and Jurisdiction is reciprocal (without Subordination or Subjection)

• [Note: if there are no political institutions, then can’t, by definition, be any political ‘subordination’.

• But what about within some nonpolitical organization?]


• Why Hobbes is wrong about the State of Nature• [according to Locke; but I think he’s right ...]• How do they in fact disagree?• 1. - Both agree that there is a “Law of Nature”. • What’s more, as we’ll see, that it’s the same as Locke’s in the end)• 2. -> what they disagree on is whether this “law of nature” has any clout - that

is, whether people’s appreciation, such as it is, of the logic of this law is enough to make them at least reasonably peaceable.

• Hobbes says No, Locke says Yes.

• 3. JN says: That’s what Hobbes is wrong about• - he hugely underestimates two things: • (a) the power of “iteration” (continued future plays of PD etc)• (b) the power of morals - even if we don’t assume that morality is wired-in, as

Aquinas did....


• Analysis regarding (3) [that Locke’s right, Hobbes wrong, re s of n]:

• For Hobbes, the main problem is with “covenant”

• Covenant is the second of the following three Kinds of Transactions/Contracts (analysis here due to DeJasay)

• Type Problem?

• 1. “Spot” - not particularly

• 2. “Half-Forward” - Yes

• 3. “Fully Forward” - Somewhat, not much

Note: Contracts with Enforcers are of type (3). [That’s important!]

• Many important human arrangements are of the first and third types; covenant is important, but is by no means everything

• [example: coordination games]

• Important question: can we shore up covenant with fully-forward arrangements, as hinted above?


• 3. Morality:• Set of Rules with No Centralized Enforcement

• Everybody “enforces” (or better, ‘reinforces’, in the psychologist’s sense: negatively, by calling people names, avoiding them in future; positively, by rewarding them, complimenting them, etc.)

• Hobbes overlooked (or underestimated) the resources of morality.• And he needs morality anyway, as we saw.• Reasonable conclusion: • A State of Nature could probably function at least moderately well without a State. (This is

Locke’s characterization)

• - This changes the picture, for unless SofN is always Worse than Governed State, Hobbes’ argument for the State doesn’t go through.


• Locke’s “Law of Nature” - our “bounds”: • “Reason, which is that Law, teaches Mankind that it has a Law of Nature to

govern it: “being all equal and independent, No one ought to harm another in his Life, Health, Liberty or Possessions”

• Q1: Interpretation - Which is basic? • Answer: Liberty (= Possessions, including of oneself)

• Issues: • Life - when am I “harmed” in respect of ‘life’? Answer: when somebody deprives me of

mine against my will (which it normally would be)[Locke thinks we have no right to commit suicide. Are we harming someone who wants to commit it, and we prevent him?]

• Health - when am I harmed in this respect? - when someone makes me sick (or injures me)

• Liberty - this is when people leave me alone, doing what I wish. I’m in charge...• Possessions - much more of this later. But note that I could give them away...


• [Reminder]: Political Liberalism - government is to be exclusively devoted to the common good - where that good is determined by the people whose good is being promoted.

• [new]: Political Libertarianism: The view that our sole fundamental right is the right to liberty

• (that is, the basic right to pursue our own interests, as we please - observing this right on the part of all others.

• Cf. Hobbes’ Law II: “That one be willing, when others are so too ... to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself”


• Rights: Negative vs. Positive

• Rights in general: Person A has the right, against person B, to do x = B has a duty to restrict his activities in relation to A’s doing x at will, in ways advantageous to A

• Two different modes of restriction:

• 1. Negative: B must refrain from preventing/interfering with A’s doing x

• ->-> Negative rights require others not to act in certain ways. They can be satisfied by doing nothing (e.g. sleeping)

•

• 2. Positive: B must do something to enable A to do x, if A can’t do x unaided (or by the purely voluntary assistance of others)

• -> -> Positive rights require that we do something

• For Short:

• Negative: right that others refrain

• Positive: right that others help

• - observing this right on the part of all others. Cf. Hobbes’ Law II.


• Example: The “Right to Life”

• Negative: Right that others not kill you

• Positive: Right that others help keep you alive, if they can and you wouldn’t otherwise be able to stay alive. - This could involve right to Rescue, Medical Assistance, Food, Shelter ..

• - necessarily brings up budget: How Much do we do for A?

• - Negative has a natural budget: Zero - what we do for A may be Nothing. (But if you really want to murder, rob, rape, cheat, etc., then compliance has a cost: you forego such “benefits.” But this cost is variable - it all depends on particular interests and temperaments.)


• Priority of Negative Rights

• Note that Negative without Positive makes sense (prima facie); Positive without Negative does not. [Can I have the duty to cure you but no duty not to kill you?? Negative rights in that sense are logically prior.]

• Lockean Rights: Life, Health, Liberty, Property

• But positive or negative ones? Answer: basically negative.

• - Self-Ownership the basic idea: YOUR life, YOUR health, YOUR liberty, YOUR property

• - These would be undercut by Locke’s Theological idea (“all children of God, here at his pleasure”)

• - That idea (as we saw in the case of Aquinas) is unacceptable.

• - Can we reduce them all to one idea?

• - Liberty = Property -- it’s the same idea: i.e., Libertarianism


• Property rights = Right to do what you want [= Liberty] with item x

• Consider the case where x = you. Say, your hands, your mouth, your brain Liberty = doing what you want

• ->-> Doing what you want is using things, viz., parts of yourself

• [note: much more about Property, a few slides down....]

• Locke’s Rights are Negative

• - Why?

• - Because positive rights inherently conflict with General Liberty Rights

• - All rights restrict Liberty (that’s what they’re for). However, liberty rights restrict it by the other person’s liberty


• Foundations: Why adopt the “Libertarian” view?

• 2 views:

• (1) Hobbesian: each person is better off this way

• (2) Theological/Metaphysical, etc.: some entity outside of ourselves wants us to be that way. (But why would it? In the case where it’s not minded, what does it even mean to say that it would??)

• 1) The Hobbesian Foundational Argument for Locke’s view:

• - Less restriction than the libertarian one is No restriction. At that point, so-called “rights” cease to be any benefit to anyone.

• - Might more restriction than that be justified? No: any maldistribution of liberty creates enemies - “Disharmony”. Hobbes’ First Law supports his second one ....


• NOTE: In Locke’s first Treatise (which we don’t read) he says:

• “God hath not left one Man so to the Mercy of another that he may starve him if he please: God ... has given no one ... such a Property ... but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him, when his pressing Wants call for it.”

• This is at least prima facie inconsistent with the Law of Nature as Locke states it....

• How heavily does it depend on Theology???


• The question of modern government: Can we do better with positive rights?

• - Positive rights impose costs on some (e.g., the capable, the productive, the healthy, etc.) in order to benefit others (the unfortunate, the incompetent, the unproductive, the sick, etc.) - and hence defy the 2nd Hobbesian “law”

• - Contractarianism justifies this only if the benefit to yourself of having all others obligated to supply you with those things more than compensates for the cost to you of supplying it to them.

• - for many, the likelihood of that is fairly low, especially if

• - You make an agreement with some others (not all) to bind themselves to supply it to you, say on condition that you do something for them (such as, pay them)


• 2) Locke’s answer: “Men are all the Workmanship of one Omnipotent, and infinitely wise Maker” (All are “Servants of one Sovereign Master” - “his Property” - “made to last during his, not one another's Pleasure

• ->->Why this is the wrong answer:

• - Note how the fact that God is supposed to be our “maker” is what makes him our owner. But the law of nature says that the maker of x is the owner of x. The law is prior to the alleged theological fact.


• A Side Note on Theology

• Theological arguments say:

• (1) some fact about God

is such that

• (2) some moral/political conclusion follows from it

• Question: does (2) depend on (1)?

• Answer: No.


• ‘God’ = a (minded) being who is

• (a) superduper Powerful, and

• (b) superduper Good

• Why do we owe him obedience?

• (i) always has the problem why anybody ever does anything god doesn’t “want” him to, since by hypothesis god can do whatever he wants

• (ii) in any case, no religious person will claim that the whole show is just a bit of bullying by the universe’s SuperCop

• (iii) Thus it has to be (c) that does the biz

• Re (c): the question is: in what does the goodness of god consist?


• The answer has to be provided by the ethical theory of the believer

• (Note: it can’t be provided “by god” because you have to know whom to ask and the answer is, the guy with properties (a) and (b) above, getting you back to square one.)

• -> which leaves the question, what is it (the ethical theory of the believer) founded on?

• The answer has to be: something or other that has nothing to do with gods.

• conclusion: all religious appeals in ethics and politics are absolutely pointless


• Punishment• - Administering the Law of Nature

• - in the State of Nature, every one has a right to punish the transgressors of that Law to such a Degree, as may hinder its Violation (the Law of Nature “would be in vain, if no body had a Power to Execute it”) [same as Hobbes]

• Reparation and Restraint - the only reasons justifying punishment

• Offenders are “dangerous to Mankind”; punishment is to protect us from them

• - In addition to a right of punishment common to him with other Men, victims have a particular Right to seek Reparation from offenders

• - 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


• Punishment• - Administering the Law of Nature: In the State of Nature,• “ every one has a right to punish the transgressors of that Law”

• Problems: • (1) it is unreasonable for Men to be Judges in their own Cases • (2) Ill Nature, Passion and Revenge will carry them too far in punishing others • (3) hence nothing but Confusion and Disorder will follow

• Locke’s argument for Government:• Locke agrees, and concludes that: “Civil Government is the proper Remedy for the

Inconveniences of the State of Nature, which must certainly be Great”


• But the Hobbesian political solution is no good:

• (1) Absolute Monarchs are but Men

• (2) if Government is to Remedy those Evils, How much better than the State of Nature is it if one Man ... has absolute power?

• To the same question we asked about Hobbes: were people ever in the “State of Nature”, Locke replies that “..all Men are naturally in that State, and remain so, till by their own Consents they make themselves Members of some Politick Society”


• The State of War - “a settled Design, upon another Man’s Life” • 1. The Fundamental Law of Nature -Man being to be preserved,• 2. “destroying one who makes War .. is like killing a Lion” - Such Men are not

under the ties of the Common Law of Reason [= Hobbes]• 3. If A tries to get B into A’s Absolute Power -> A makes war on B -> it is

Lawful for a Man to kill a Thief [so storeowners may keep guns to protect themselves?]

• (....and if a thief, then an Absolute Monarch)• 4. >> The “plain difference” between State of Nature and State of War: (1)

Peace, Good Will, Mutual Assistance, Preservation - vs. (2) Enmity, Malice, Violence and Mutual Destruction

• 5. When the fighting is over, the State of War ceases in Society: “there is remedy of appeal for past injury, and to prevent future harm”. But

• > no such appeal in the S of N -- no Laws or Judges with Authority • ... so War once begun, continues .. a “great reason” for Civil Society• [comment: Why?? Note, e.g., that international wars do end, often]


• Slavery• Man is Naturally free ... with only the Law of Nature for his Rule• The Liberty of Man in Society, is to be under only Legislative

Power, established, by consent, in the Common-wealth• Freedom of Men under government, is, to have a standing Rule to

live by, common to all, made by the Legislative Power .. and A Liberty to follow my own Will in all things, where the Rule prescribes not

• [Is this trivial? If it isn’t covered by the law, it isn’t forbidden by it?]

• -> -> But it’s not. The rule could be: Anything not allowed is forbidden. It’s only the Liberal who says: Anything not forbidden is allowed!]

• Freedom from Absolute, Arbitrary Power is necessary to Man’s Preservation - who foregoes it, forfeits his Preservation and Life


• Property

• Defined:

• A Owns X = A has the right to do whatever A pleases with x

• A has the Right to do x -> Others may not interfere with A’s doing x ... thus Property is the right to exclude).

• BUT (says Locke:) “God has given the Earth to Mankind in common”

• [Q: How does Locke know this?

• A: because God is a good guy, right?

• Q: Why wouldn’t the “good guys” give it, say, only to the

• pool-players among us?

• Or the Jews? - Or everybody except the Jews? or ...]


• Property

• Locke’s Question: How, if it’s all Commons, can any one ever come to have a Property in any thing? - one without “express Compact of all the Commoners”?

• [‘commons’ is common property.

• Is it jointly owned?

• If so, use of it requires permission of all owners; hence all “commoners”

• [And who are they? Notionally, everybody.

• Not, England for all the English, Belgium for all the Belgians - those distinctions don’t exist in the State of Nature...]


• Locke’s answer:

• a) Theological version: God gives us reason to make use of it to the best advantage

• b) Secular version:

• (1) every person, A, has a Property in A’s own Person. This no Body else has any Right to [By virtue of L of N]

• (2) The Labour of A’s Body & theWork of his Hands are A’s.

• (3) If A “removes x out of the State of Nature” and hath “mixed his Labour with x”, then A has

• (4) “joined to it something that is his own”

• -> (5) and this makes x A’s Property

(Principle: “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”)


• >> That Labour put a distinction between them and common. That added something -- so they become his private right

• Question: Why? (Why does all of a thing that I added something to become mine??)

• Nozick’s Question:

• “... but why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t own?

• “If I own a can of tomato juice and spill it in the sea so that its molecules ... mingle evenly through the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?”

• [Anarchy, State, and Utopia, p. 175]


• Should we think that “the consent of all Mankind” was necessary to make them his?

• Locke claims not:

• “If such a consent as that was necessary, Man had starved, notwithstanding the Plenty God had given him”.

• [See next slides: Without Property , the Common is of no use. ]

•


• Distributive Justice a la Locke [as deduced from his Law of Nature]:

• Reminder: A owns x = A gets to do what he wants with x

• 1. Original Acquisition: x belongs to A if A uses x, where x is previously unowned [Or: A makes x out of y, and y is previously unowned or A comes to possession of y via (2)

• 2. Exchange: If A owns x and B owns y, A and B’s agreement to exchange is sufficient [also gift]

• 3. Rectification: If A stole x from B, then B, C, D, ... may force A to return x to B.

• Note that just distribution on this view has nothing to do with (a) needs, as such, or (b) proportions, such as equality


• Limits on Original Acquisition

• 1. May we take “as much as we will”?

• Locke says no: “God has given us all things richly - But how far?

• answer: 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.” Beyond this, is “more than his share”

• But How much is that?? Consider the person who simply has to have six beach condos - five won’t do .. Who would decide this?

• [Liberalism’s is: “we” do. But that doesn’t settle the issue, for what should “we” decide, when A and B disagree?]


• 2. The “Lockean Proviso”: The foregoing is true, “... at least where there is enough, and as good left in common for others”

• Claim: “Nor was this appropriation [of land] any prejudice to any other Man, since there was still enough, and as good left”

• Questions about the The “Lockean Proviso”:

• [which says that the foregoing is true, “... at least where there is enough, and as good left in common for others”]

• Questions:• 1. Which others? • a) absolutely all? • b) Everyone in the near neighborhood? • c) In the future as well as the present?

• 2. If the “amount” is finite, and (a) tends toward infinity, then nobody could have anything


• 3. What is the criterion of ‘enough and as good’?• -> same amount as A takes??• -> equally productive?• -> of what??• - all these answers are unanswerable• 4. Are “natural resources” worth anything at all?• - if not, there is no distributive problem• - There is only the need to protect the liberties of everyone• - including the first comers whose rights are at issue• Locke notes that one acre of cultivated land in Sussex is worth 100 oro 1000 in “the wilds

of America”• The difference is due to labor

• Question: might the difference made by labor be such that the “others” are better off by virtue of A’s having exclusive ownership?

• [answer: certainly!]• note: see Narveson, “The Lockean Proviso” on his website under “Essays” (not under

“Course materials”)•


• The Commons: Why?

• X is a Commons if and only if there is a group, G, such that everyone in it is a joint owner of X. Prima facie, nothing can be done to X without the consent of every member of G. If “God gave the World to Men in Common” , then all men are members of G, and X is the whole world

• -> but “he gave it them for their benefit” - hence, for “the use of the Industrious and Rational” -- not to the Fancy or Covetousness of the Quarrelsome and Contentious”

• [How does Locke know that? Because God’s got such good taste?]

• >> Claim: subduing or cultivating the Earth, and having Dominion, we see are joined together. “The one gave Title to the other.”

• [Note: If this is true, then is Socialism out the window?]


• >> Importance of Labor: “a thousand acres in the uncultivated waste of America ... will yield the wretched inhabitants as many conveniences of life as ten acres of equally fertile land in Devonshire where they are well cultivated ...”

• “that of the Products of the Earth useful to the Life of Man 9/10 are the effects of labour : nay .. in most of them 99/100 are wholly to be put on the account of labour”

• [Make that 100%? Or is it a matter of percentages??]• Why the Earth is Not a Commons• >> We may not assume that “God” had anything to do with it• [as shown previously]• >> Moral rules are man-made• --> Nobody owns anything prior to human use and arrangements.• -> Natural Resources simply are -- they do not “belong” to anyone, in themselves.

• [This follows from the point that morals is a set of rules among humans concerning their actions in relation to each other.

• Property rules privilege certain actions. The question is, which and why.• The idea that things are “just naturally ours” contradicts the basic Lockean/libertarian

idea: we are free beings, not beholden to others.]


• Money• - a “lasting thing” that by mutual consent Men would take in exchange for the

truly useful, but perishable, Supports of Life.

• - money gives them the opportunity to continue and enlarge them. ..

• “It is plain, that Men have agreed to 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”

• The central idea of Classical Liberalism is that that’s enough to make it OK!

• i.e., that other people may not intervene with force to prevent or undo exchanges meeting those conditions....


• Why is this “plain”??

• [Or, as some critics (such as C. B. MacPherson) would claim, is it only bourgeois Englishmen who have thus “agreed”?]

• Note that the central feature of money is that it is a medium of voluntary exchange

• The idea is that Money got by force and fraud is not yours

• All other exchanges employing money are prima facie legitimate

• These exchanges ensure that

• a) both parties are better off

• while the Law of Nature requires that

• b) nobody else is worse off

• due to the exchange

• The central idea of Classical Liberalism is that that’s enough to make it OK!

• i.e., that other people may not intervene with force to prevent or undo exchanges meeting those conditions....


• Parental Power • - Paternal = Maternal power (via Initial Acquisition)

• - The Power of Parents over their Children - arises from the Duty to take care of their Off-spring, during the imperfect state of Childhood

• [Why???]

• - To inform the Mind, and govern the Actions of their yet ignorant Nonage, till Reason shall take its place ..

• Law: the direction of a free and intelligent agent to his proper Interest,

• - prescribes no farther than for the general Good of those under it

• - The end of Law is to preserve and enlarge Freedom

• - Liberty is to be free from restraint and violence from others

• - which requires Law - [moral, yes; but legal??]

• - and not to be subject to the arbitrary Will of another


• When the Father quits his Care of his children, he loses his power over them - has no power “over their Lives, Good, or Liberty once arrived at years of discretion”

• - Fathers cannot dispossess Mothers of this right, nor can any Man discharge his Son from honouring her that bore him

• Children owe honour , respect and gratitude - But all these give no right to make Laws over him from whom they are owing


• The general problem: infants are (a) helpless, and (b) products of the activities of two adults. Why doesn’t the latter give those adults full power over infants?

• Maybe the answer is that it does... But as infants mature, they become rational, free beings, and thus have the rights of such beings.

• Finding the proper mix in between is the challenge ... how much authority to allow parents over their children? (And how much to allow other people over children that aren’t those other people’s...)

•


Of Political or Civil Society• Q: Why political society?

• “Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great”

• “Strong Obligations of Necessity, Convenience, and Inclination drive us into Society”

• - Domestic “society” comes first.

• Political Society begins when the power to punish is given to the Community - by settled standing Rules, the same to all Parties


• Absolute Monarchy

• (a dig at Hobbes): (“which by some Men is counted the only Government in the World”),

• is inconsistent with Civil Society • - For the end of Civil Society, being to remedy those inconveniences of the State

of nature, which follow from being Judge in his own Case • - those who insist on being so are still in the state of Nature• - Every Absolute Prince is so re his subjects (“no Appeal lies open to any one,

who may fairly, and indifferently, and with Authority decide what may be suffered from the Prince”)

• - if it be asked, what Security is there in such a State, against the Violence and Oppression of this Absolute Ruler? The very Question can scarce be born ...

• - when [people] perceive, that they have no Appeal on Earth against any harm they may receive from him, they are apt .. to take care as soon as they can to have that Safety and Security in Civil Society, for which it was first instituted ...


• Beginning of Political Societies

• - No one can be put out of the SofN without his own Consent

• - one divests himself of Natural Liberty only by agreeing with other Men to join into a Community

• - (“for their comfortable, safe, peaceable living in 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

• [Question: is that true??]


• Democracy

• - When any number have so consented they make one Body Politic, wherein the Majority have a Right to conclude the rest.

• (Why? .. “It is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority ...”

• - For if the consent of the majority shall not in reason, be received, as the act of the whole, nothing but the consent of every individual can make any thing to be the act of the whole: But such a consent is next impossible ever to be had.”)

• >> Majority of the Community shall be decisive, unless they expressly agreed in any number greater than the majority

• [Note: It can’t be less ... For if it were, then proposed Law L and proposed Law Not-L could both pass]


• Tacit (Implicit) Consent (remember our lecture on Socrates??)

• No problem if there is express Consent [but when is that??]

• But, what constitutes “tacit” Consent? Locke’s answer: living under that Government’s protection

• >> “It would be a direct Contradiction, for any one, to enter into Society with others for the securing and regulating of Property: And yet to suppose his Property is exempt from the Jurisdiction of that Government”

• [And what if the government confiscates his property for arbitrary reasons?]


• Reach of Assent• Submission via property. Once he sells (to anybody willing to buy...), he is at

liberty to go and incorporate himself into any other Commonwealth, or to agree with others to begin a new one.

• >> Whereas he, that has once, by actual Agreement, and any express Declaration, given his Consent to be of any Commonweal, is perpetually obliged to remain unalterably a Subject to it [!]

• >> Submitting to the Laws of any Country, and enjoying Privileges and Protection under them, makes not a Man a Member of that Society - Foreigners, living all their Lives under another Government ... do not thereby come to be Subjects or Members of that Commonwealth. Only express Promise and Compact can do that ...

• [Note: the effect of this would be to make a State into an Association]

•


• The Ends of Political Society and Government

• Why will a rational person part with his Freedom? “obvious Answer”: The Enjoyment of it is “uncertain”

• >> The great and chief end of Commonwealth ... is the Preservation of their Property

• The Three Great Problems with State of Nature:

• The state of Nature fails to do this because it lacks:

• * 1. settled, known Law, to decide all Controversies between them ...

• * 2. known and indifferent Judges, with Authority to settle all differences

• * 3. power to back and support the Sentence

• Thus they “take Sanctuary under the established Laws of Government, and therein seek the Preservation of their Property”


• The Two Powers we “give up”:

• (1) of doing whatsoever he thought fit for the Preservation of himself [=Hobbes’ right of nature...]

• (2) Punishing -- instead he “engages his natural force ... to assist the Executive Power of the Society”

• >> only with an intention in every one the better to preserve himself his Liberty and Property


• Of the Extent of the Legislative Power

• First : Legislative power; As 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 “This .. is sacred and unalterable in the hands where the Community have once placed it;

• Monopoly: >> No Edict of any other Body has the force and obligation of a Law

• [We should ask: Why not??]

• [One possible answer is that, by definition, the government is the ultimate political power in a society. - Yet notice that it is it only by our say-so, according to Locke. But if I make a deal with you, why doesn’t that have the very same force??]


• Restrictions on Legislative power:• 1. Cannot be Arbitrary over the Lives and Fortunes of the People• 2. No Arbitrary Decrees, but only standing Laws, and Authorised Judges

*** Note this next one:

• 3. cannot take from any Man any part of his Property without his own consent >> preservation of Property being the end of Government

• [Comment: This doesn’t keep the Canadian government or constitutional gurus from resolutely refusing to include a right of property in the Charter!]

• 4. cannot transfer the Power of Making Laws to any other hands..

• Question: is it possible to have government without taxes??


• Subordination of Powers in Commonwealth• The People have Supreme Power to remove or alter the Legislative .. For,

whenever that end is neglected, trust is forfeit and Power devolves into the hands of those that gave it.

• So, the Community perpetually retains a Supreme Power of saving themselves from the designs of Legislators ... against the Liberties and Properties of the Subject ...

• [Elections are a good substitute for Revolutions!]• XIV. Of PREROGATIVE• Prerogative: permits Rulers, to act of their own free choice, where the Law

was silent, or even against the Letter of the Law, for public good• “Who shall Judge when this Power is made a right use of? I answer: The

People have no other remedy in this, as in all other cases where they have no Judge on Earth, but to appeal to Heaven

• [Historical note: that’s a direct reference to the English Civil Wars]


• XVI. Of CONQUEST

• doesn’t set up any Government - merely demolishes one

• The power a Conqueror gets over those he overcomes in a Just War, is perfectly Despotical - he has absolute power over the Lives of those - but not to their Possessions [interesting! But nonsense, surely: If I have a power over your life, then surely I can offer to trade it for your possessions...]

• The Conqueror , even with Justice on his side has no right to seize more than the vanquished could forfeit, e.g., the Goods of his Wife and Children

•


• TYRANNY

• The difference betwixt a King and a Tyrant :

• King obeys his own laws, and acts for the Good of the Public

• Tyrant makes all give way to “his own Will and Appetite”

[Liberalism says: This is Misleading, and inadequate: unless we include in the Tyrant’s “appetite” a thirst for theories - ideologies, views about what’s good for people.]

• Anticipation of the Tyranny of the Majority: Not only Monarchies. For wherever the Power that is put in any hands for the Government of the People is applied to other ends, There it becomes Tyranny, whether those that thus use it are one or many ....


• May the Commands of a Prince be opposed?

• (1) If we say, “as often as any one shall find himself aggrieved” , this will unhinge and overturn all Polities [cf. Thoreau]

• (2) Force is to be opposed only to unjust and unlawful Force

• Yes ...? (Unhelpful)


• Dissolution of Government

• - Distinguish Dissolution of Society, and Dissolution of Government

• What makes Community one Politic Society, is the Agreement which everyone has with the rest ...

• Governments are dissolved from within, when

• 1. the legislative is altered [e.g., when a single Person or Prince sets up his own Arbitrary Will in place of the Laws]

• 3. the ways of Election are altered, without the Consent, and contrary to the common Interest of the People ..

• 4.[by delivery of the People into the subjection of a Foreign Power ..

• When the government is dissolved, the People are at liberty to provide for themselves, by erecting a new Legislative ...


• The end of government is the good of Mankind

• So: which is best for Mankind?

• >> that the People should be always exposed to the boundless will of Tyranny

• >> or, that the Rulers should be sometimes liable to be opposed, when they grow exorbitant in the use of their Power, and employ it for the destruction, and not the preservation of the Properties of their People?

• Who shall be Judge whether the Prince or Legislative act contrary to their Trust? “I reply, The People shall be Judge”

• Remaining question: Does Locke really justify government?

• Provisional answer: No.

226 Notes 3 - Critics of Locke [58]

• Lysander Spooner: Government by Consent??

• Did we really “consent” to [say] the U.S. Constitution?

• The Constitution has no inherent authority or obligation. • It has it only as a contract between man and man.

• To say “yes”, to our question, we need to suppose that the deal is• * fully voluntary• * would apply only for its specified duration

• *Voting • * can bind no one but the actual voters• [so: perhaps when people don’t vote, we should count that as a vote against the office!]• * and for at most the period of the specified term of office• * would have to be in full knowledge of the Constitution etc.


• In general, the situation is that:

• * without his consent having even been asked a man finds himself environed by a government that he cannot resist;

• *that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments.

• *other men practice this tyranny over him by the use of the ballot.

• *if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own.

• * [so,] if he use the ballot, he may become a master; if he does not use it, he must become a slave.


• Conclusion:

• ** there is not the slightest probability that the Constitution has a single bona fide supporter in the country.

• ** i.e., who both understands what the Constitution really is, and sincerely supports it for what it really is.

• Supporters of Government fall into three classes:

• 1) Knaves (who use govt to aggrandize themselves)

• 2) Dupes (are are “stupid enough to imagine that they are “free men”, etc.) - i.e., who have been taken in by the political rhetoric

• 3) Those with “some appreciation” who either

• (a) don’t see how to rid themselves of government, or

• (b) would rather sacrifice their interests than work for change

• [call these “victims”]


• Spooner’s Conclusion:

• Inasmuch as • 1) the Constitution was never signed, nor agreed to, by anybody, as a contract, • 2) and therefore never bound anybody, and is now binding upon nobody; and is,

moreover, • 3) no one would consent to it, except “at the point of the bayonet”

• Therefore,• 4) the Constitution is no such instrument as it has generally been assumed to be; • and what’s more,• “by false interpretations, and naked usurpations, the government has been made in

practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.”

• In either case, the government under it is “unfit to exist”


• David Suits: The Challenge of Anarchism•

• Anarchism is the view that there should be no government

• Why?

• - Because government is evil?

• - or because government is incompetent? (-- whatever it tries to do that is worth doing can be done better by non-governmental agencies)

• [It’s not clear what the difference is ...]

• What is government for?

• mainly: to protect people from violence

• - from fellow citizens

• - from foreigners

• A special category of concern: violence from officials


• --> Or, is it to promote the happiness of its people?

• two variants:

• 1. Platonic (or “conservative”) variant: Rulers know enough to claim they do people a favor by not letting them act on their own understanding of happiness

• 2. Liberal: each is the only ultimate authority on his own happiness: others have no business forcing him into some other pattern of life.

• - Anarchism incompatible with Conservatism - The Platonic ruler claims to know, and how will we plebes be able to show him wrong?

• - On the liberal view, any government activity is at least problematic, for it consists in forcing everyone to comply with a certain rule


• Is Government compatible with Liberalism??

• Liberalism justifies force to defend self or others only

• - requires that the person defended is willing to be defended by those persons

• - but Locke thinks that we should all surrender our separate right to defend ourselves to a central government

• -- Why?

• Three functions of Government:

• Adjudication: are accused parties actually guilty?

• Legislation: of the right things?

• Enforcement: Will they be correctly punished?

• - Locke believes that the Law of Nature really is “natural”

• -- we can all appeal to it without waiting for a legislature

• -- can we deny that a legislature is necessary for this purpose?


• - Locke believes that the Law of Nature really is “natural”

• -- we can all appeal to it without waiting for a legislature

• -- can we deny that a legislature is necessary for this purpose?

• In an anarchy, all present functions of government would either

• (1) not be performed at all [drug laws; regulating trade], or

• (2) would be undertaken by voluntary associations [schools, police.]

• Two types of those:

• commercial

• non-commercial

• -- Commercial is fine if the commodity is marketable

• -- Non-commercial is fine if motivation is sufficient

• [but if it isn’t - why should it be done at all??


• Suits challenges Locke:

• on all three points:

• Private/voluntary police

• voluntary law

• private adjudication, agreed to by all parties to it..


• Is Government worth it??• Almost all government action results in considerable costs:• - either people get no benefit at all• - or, not what they like• - or more of it than they would be willing to pay for if they had to pay for it and had

their choice.

• 1. Defense. • Warehouses, Universities, large companies, and so on, all hire private police (There are

more private than public police in the North America) • Many crimes are unsolved, criminals often get off without punishment;• victims usually do not get compensated• -- Neighborhood Watch groups• -- intruder-detection equipment (from a private company, such as Radio Shack - not

from the State), or by arming themselves. • Self-arming? • Governments not only fail to protect citizens very well, but make many laws that don’t

protect anybody from anyone (e.g., drugs)


• 2. Courts and Judges.

• Most cases are settled outside courts.

• Private arbitration much cheaper

• - Will it work for the criminal law??

• 3. Law.

• Polycentricity: Can different groups of people live according to quite different sets of laws?

• -> Such laws would apply only to the members of the groups subscribing to those laws, NOT others.

• Nevertheless, they can be rules with force among the members

• -> Is that good enough? Inter-group relations important


• Agreement the Basis• Every time you and I make an agreement, we have formulated a little “law” between the

two of us

• Modern Government: Education, Health, Welfare .... • Provision of these things by the state is popular • .... So are continuing disputes about just what the public schools should be trying to

teach, which medical services the government will now allow you to have next month, how we are going to pay for all this, why Johnny can’t read

• Obvious that all of those can be provided by voluntary means.• Why aren’t they?• [Because there “wouldn’t be enough”?• Are there “positive” rights to these?• [why?]• Not on Locke’s Principle

• To Be Continued ...!


Somalian Law• Anarchy?

• * No punishment for crimes, only restitution or compensation.

• * No public prosecutors, no victimless crimes.

• * Fines are limited and must be paid to the victim or to his family.

• * Every person is insured for his liabilities under the law.

• * Judges are appointed by the litigants, not by 'society'.

•


Somalian Law• The five general rights:• Liberty: * To acquire property, including his own body, and to use and

dispose of it as he wishes provided he does not harm the same right of all others.

• Property: * To appropriate [movable] objects that belong to no one else.• Contract: * To make agreements with consenting others.• Defense: * To defend his rights.• Restitution: * To obtain restitution from the violator of his rights.• From these five fundamental rights other natural rights derive. • No rights can exist that fall outside the framework of these five rights.• [so, a judge cannot hear a complaint not based on one of them.• therefore: no victimless crimes. You can’t haul a person in for taking dope.


• [Somalian Law, continued ...]• natural right: • (1) to one's part of the natural world [person and property] • (2) one's activities in that world provided one respects (1) [Liberty]• kritarchy: police forces cannot lawfully use their weapons and

coercive powers except for maintaining natural rights• Courts and the policemen of a kritarchy are not part of a coercive

monopoly• Every person is entitled to offer judicial and police services to willing

others; no person can be forced to become a client of any court of law or police force against his will

• Note: The system depends on everyone’s belonging to a large extended family.

• Question: could we achieve the same with protective associations instead?


• Concluding Thoughts on Locke:

• 1) State of Nature his picture: pretty general cooperation - is more realistic than Hobbes

• 2) Implication for Arguments for Government: If S of N could be better, then our tolerance for bad governments is lower: Locke regards absolute monarchy (etc) as tyrannical and illegitimate

• 3) government is justified only if it improves on S of N by rectifying some “inconveniences”

• 3.1 uniform punishment & administration of same

• 3.2 uniform judiciary

• 3.3 uniform law for all


• [Concluding Thoughts on Locke, continued...]

• 4) can a state be consensual as Locke insists?

• - not obviously! [e.g.,

• 4.1. Locke says that government cannot take property without consent of owner.

• - Can we have government without taxes??]

• 4.2. Spooner blows “consent” out of the water

• 5) Suits argues that there can in principle be decentralized, non-monopolistic performances of the Lockean functions - i.e., anarchy seems possible

• 6) Somalian society seems to be a real-world case of a functional anarchy

• - Where does that leave us??

• - On to Hume ...

226 Notes - Locke [1] John Locke - 1632-1704. 226 Notes - Locke [2] Locke’s life in brief: Born of...

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