15. Constitutional Government: Locke’s Second Treatise (1-5)

Professor Steven Smith:
It’s so nice to see you again on this gorgeous autumn day.
And we had a wonderful, wonderful weekend,
didn’t we? Yes, we did. Okay, today,
I want us to begin… we move ahead.
We’re moving ahead. Today we begin with Mr.
John Locke. For the next three classes,
Mr. Locke.
It is hard to believe that a little book like this,
in this not terribly distinguished edition,
mind you, but nevertheless, in this edition of just over a
hundred pages, that a book of this length
could have such world shaping effects.
If anyone would ever doubt the importance of ideas,
political ideas, in history,
I would only say to you to consult the history and the
influence of John Locke. Remarkable.
I want to talk today a little bit about Mr.
Locke. John Locke is,
for our purposes today, I mean, there are many reasons
why one would read him in different kinds of classes,
but for our purposes, John Locke gives the modern
state, the expression that is most familiar to us.
His writings seem to have been so completely absorbed and
adopted by Thomas Jefferson when he wrote the Declaration of
Independence that Locke seems to have become virtually a
kind of honorary founding father,
as it were, of America. Among other things,
John Locke advocates the natural liberty and equality of
human beings, our natural rights to such
things as life, liberty, and what he calls
“estate” or property, the idea that government,
at least legitimate government, is government by consent,
that legitimate government is necessarily limited and limited
government constituted by a separation of powers,
and that when governments become repressive or that when
governments become abusive of natural rights,
that the people have a right to revolution.
In addition to this, John Locke was a famous
advocate of religious toleration.
His name is forever linked with our ideas today of what we might
call liberal or constitutional democracy.
He gives the modern constitutional state,
again, its definitive and, in many ways,
most familiar expression. Yet, Locke did not arise ex
nihilo, nor did anyone. Locke’s writings come from
somewhere and from some source. They were prepared,
in many ways, in part by Machiavelli,
who had died approximately a century before Locke’s birth.
But more importantly, by another English writer,
or by an English writer with whom we have spent some time,
namely Mr. Hobbes, Thomas Hobbes.
Hobbes took Machiavelli’s idea of The Prince and,
in effect, turned it into a theory or doctrine of
sovereignty. The Hobbesian sovereign is at
the basis of our ideas of impersonal, or what we might
call representative, government.
He transforms princely rule, Hobbes does,
into an office called the sovereign.
And this office is, for Hobbes, the creation of a
social contract, or covenant,
as he calls it, responsible to the agents or
persons who have created the contract.
Hobbes had taught that the sovereign is representative of
the people who create his office in order to ensure peace,
justice, and order. Without the power of the
sovereign, we would find ourselves in a condition of
nature, a state of nature,
a term coined by Hobbes to indicate a world without civil
authority or at least with only weak civil authority,
unable to enforce common rules and laws.
Hobbes gave voice to the doctrine of secular absolutism,
one that invests the sovereign with absolute power to do
whatever is necessary to ensure, again, the rule of law,
justice, and political stability.
And out of these rather harsh and formidable premises,
Locke created a different, what we would think of as a
more liberal constitutional theory of the state,
while being still, in many ways,
very dependent on the premises that Hobbes,
again, modifying Machiavelli, had undertaken.
Locke set out a process of domestication.
He set out to tame or to domesticate Hobbes’s fierce or
harsh theory of absolute government, which had found few
defenders in his own day. Locke’s most important work of
political theory, of political philosophy,
is his Two Treatises of Civil Government,
of which we are only reading the second.
The book we have before us is often simply referred to as the
Second Treatise, but you will probably have
suspected, I think, that the Second Treatise
was preceded by a first treatise.
The First Treatise is much longer than the Second
Treatise, and it was an elaborate and
painstaking, one could almost say
deconstruction, of the theory of the divine
right of kings, which in his era,
had received expression by a man named Robert Filmer,
whose name appears, I think occasionally,
in the Second Treatise. Filmer had written a book
called Patriarcha, and the Patriarcha had
argued that all political authority derives from the grant
of authority that God had given to Adam,
and therefore, that all legitimate authority
has divine right behind it. Locke’s First Treatise
is a very important, but also, I have to say,
extremely tedious work, and you should be grateful that
I am not assigning it to you. But it’s a very interesting
book, in its own right, of in many ways,
biblical criticism and exposition.
But it’s only in the Second Treatise that Locke set out
to set out his own positive theory of government,
as it were. This book was written,
we now believe, shortly before the famous Whig
Revolution of 1688, and in it, Locke sets out his
theory of parliamentary supremacy, rule of law,
and constitutional government. To put it maybe slightly oddly,
Locke was in his day, to some degree,
what Aristotle was to his. The Second Treatise is
intended as a practical book. It was a book addressed not so
much to the philosophers of his age, but to Englishmen,
written to them in the everyday language of their time.
He wrote to capture, in a way, the common sense of
his time, although this is not to say Locke was not,
at the same time, a deeply controversial figure.
Locke had the ability, and it’s a very desirable
ability, to take, in many ways,
radical or even revolutionary ideas and express them in a kind
of language that makes people believe that this is what they
had thought all along. And that is,
to some degree, the genius of the Second
Treatise. In many ways,
that is easier for us, because Locke’s language has
become, for us, the kind of I would almost say
common sense, or shorthand language,
for the way we think about politics.
And it was, again, a mark of his genius to be able
to create that language and give it a stamp that seemed to make
people believe that this is what they had simply been thinking
all along. Locke was himself a deeply
political man, but he was also,
at the same time, as I’ve just been hinting,
perhaps, a very reticent one. He lived in a period of intense
religious and political conflict.
He was just a boy in school when a king, Charles I,
was executed and he was an adult when another king,
James II, was overthrown and forced into exile.
He was a younger contemporary of Hobbes, but he lived in a
period of immense civil conflict and war.
Locke spent many years at Oxford, where he was both a
student and a fellow, and he was suspected,
throughout much of his time there, of harboring radical
political sympathies, but he was so cautious and
careful in expressing them that after many years,
even those closest to him were unclear as to what his opinions
were. The master of Locke’s own
residential college at Oxford, Balliol College,
described Mr. Locke as the “master of
taciturnity,” a master of taciturnity because he could not
discover, through questioning and so on,
Locke’s opinions on religious and political matters.
Just think of it. There used to be a very
wonderful bust of Locke in the lobby of the British Arts Centre
and I used to recommend to students,
when they were down in that part of campus,
to stop in and look at his face,
because as with Machiavelli and others, the face is very
revealing. And I used to ask people to see
do you detect in here the sense of the master of taciturnity
that his college master had discussed?
Locke was a private secretary and a physician to a man named
Anthony Ashley Cooper, later known as Lord
Shaftesbury. Shaftesbury had a circle,
the Shaftesbury Circle, of political followers who were
opponents of the monarchy and who were forced into exile in
1683. Locke followed them into exile.
He spent several years in Holland in 1683 before returning
to England, again, shortly before the Whig
Revolution, where his book, the Second Treatise,
was published and where he lived until his death in 1704.
Just two years ago, in fact, Yale,
at the Beinecke Library, held a major conference in
commemoration of the 300th anniversary of the death of Mr.
Locke. So those are a few things about
his contributions and his context.
I want to begin today the substantive part of this talk by
focusing on the theme that, in many ways,
forms the central core of Locke’s political doctrine,
his Theory of Natural Law. This is a term that has come up
from time to time. There is no modern thinker that
I’m aware of who makes natural law as important to his doctrine
as does Locke. The best way to observe the
working, or to reconstruct the working, of natural law is to
follow a procedure that we have seen before;
to think about what is the condition of nature,
the state of nature, where we can see the natural
law in its operative form. The state of nature,
for Locke, in many ways, as for Hobbes,
is not a condition of ruling and being ruled,
as it is for Aristotle. The state of nature is not a
political condition. Locke describes the state of
nature as a condition of perfect freedom.
While Aristotle said that we were, by nature,
members of a family, a polis,
a moral community of some kind, bound by ties of civic or
family obligation, Locke understands,
by the state of nature, a condition without civil
authority or civil obligations. The state of nature is not,
for him, an historical condition, although he does
occasionally refer to the vast tracts of North America as
suggesting a condition of nature,
but the state of nature is a kind of thought experiment.
What does human nature like in the absence of authority? The state of nature,
Locke suggests to us, is not an amoral condition,
as it was for Hobbes. It is not simply a condition of
war, of all against all. The state of nature,
he tells us, is in fact a moral condition.
It is governed by a moral law, or a natural law,
that dictates peace and sociability.
There is a moral law of nature that determines that no one
should harm another person in their life, liberty,
or possessions. This natural law,
Locke affirms, “willeth the peace and
preservation of all mankind.” So the natural condition,
for Locke, is a moral state, one in which a natural law,
again, dictates the peace and preservation.
It is not a war of all against all.
Locke’s natural law, in some ways,
seems like a very traditional form of moral law,
familiar to readers of his time;
readers who would have been familiar with the natural law
tradition, going back to Cicero, the Roman Stoics,
St. Thomas Aquinas,
and in Locke’s own day, an important Anglican divine by
the name of Richard Hooker. Locke’s theory of moral law,
or natural law, sounds comforting and
traditional, and to some degree, it is.
All civil authority has its foundation in a law of reason
that is knowable, by virtue of our rational
capacities alone. The law of nature declares,
according to Locke, that we are,
in his famous term, the “workmanship of one
omnipotent and infinitely wise maker.”
And as products of divine workmanship, we ought never to
harm anyone in their lives, liberties, or possessions.
Locke, again, seems to effortlessly weave
together the Stoic tradition of natural law with these Christian
ideas of divine workmanship into one seamless whole.
You can see the way in which Locke’s rhetoric here,
in his writing, brings together different
strands of the philosophical and theological tradition,
weaving them together in a kind of effortless whole almost. Do not be simply seduced by
this. Why do I say that?
Because even within the same paragraphs, Locke’s natural law,
the law that, again,
mandates or dictates “peace and preservation of all mankind,”
turns into a right of self-preservation.
From the beginning, you have to say,
it is not altogether clear even whether the natural law is a
theory of moral duty, duties that we have to preserve
other’s duties and obligations, or whether it is a theory of
natural rights that mandates that the highest priority be
given to individual self-preservation and whatever
is necessary to achieve the preservation of the individual.
The state of nature is a condition without civil
authority. The law of nature,
in other words, has no person or office to
oversee its enforcement or its application.
So this state of nature that he once describes,
or early describes in the book is a condition of peace and
mutual distrust, quickly degenerates into a
condition of civil war, or of war, where every
individual serves as the judge, jury, and executioner of the
natural law. The state of nature quickly
becomes a Hobbesian condition of essentially every man for
himself. Consider the following passage
in section 11 of the Second Treatise.
“The damnified person,” Locke writes–someone who has been
mistreated in the condition of nature–the “damnified person,”
who has been injured or mistreated, “has this power of
appropriating to himself the goods or services of the
offender by the right of self-preservation,
as every man has a power to punish the crime to prevent it
being committed again, by the right he has of
preserving all mankind, and doing all reasonable things
he can in order to that end.” In other words,
if you have been wronged, or feel you have been wronged,
in the state of nature, you have, according to the
natural law, for Locke, the right to,
as he puts it, appropriate to yourself the
goods or services of the offender.
And you have that–to take from them their goods,
their property, their services in some way,
whatever you feel appropriate as, again, the person who has
suffered some kind of wrong. Every person becomes,
as it were, judge and executioner of the law of
nature. The fundamental law of nature,
Locke says here, is the right of
self-preservation. And this states that each
person is empowered to do, again, whatever is in his
power, to preserve him or herself.
Again, consider the following in section 16:
“And one may destroy a man who makes war upon him.”
May destroy another who makes war upon you.
“Or has discovered an enmity to his being, for the same reason
that he may kill a wolf or a lion,”
because such men “are not under the ties of the common law of
reason.” They “have no other rule but
that of force and violence,” so also, they may be treated as
beasts of prey, “those dangerous or noxious
creatures that will be sure to destroy him whenever he falls
into their power.” Listen to that language.
From an original moral condition, where we are under a
natural law not to harm others, a law to preserve and protect
the well-being of others of our kind, we have become like lions
and wolves to each other, beasts of prey and other
noxious creatures. What is the state of nature,
but, in the words of Dorothy Gale, “lions,
tigers, and bears, oh my!”
This is what we are to one another.
This is what I’ve come to think of as Locke’s bestiary,
and in fact, the Second Treatise is
rife with language of comparing human beings and our behavior to
animals. He speaks about lions and
wolves. Elsewhere he speaks about
polecats and skunks and foxes. If, in fact,
we are all beings, as he says, created under a
natural law, we seem to quickly degenerate into almost bestial
behavior. Beasts of prey,
far from being cooperative and peace seeking creatures.
The very freedom that such beings as ourselves enjoy in a
state of nature leads us to abuse that freedom and,
in turn, requires or is at the basis of the need for civil
government. However, in the meantime,
the question that any reader of the Second Treatise has
to ask of themselves–and I hope you’ve put this forward in your
sections to one another–is whether the natural condition,
as Locke understands it, is one overseen by a moral law
of justifying or sanctifying peace and security,
or whether Locke’s state of nature is simply a thinly veiled
description, a thinly papered-over description,
of the Hobbesian war of all against all.
Was Locke simply Hobbes, in some way,
in sheep’s clothing? Remember his famous taciturnity.
Locke seems to be speaking two very different languages,
in other words, one of traditional natural law
that holds out duties to others as primary and the other,
in some ways, a modern Hobbesian conception
of natural rights that maintains the priority of right and each
individual’s right to self-preservation.
Is Locke, in other words–and this is perhaps more of an
historical than a theoretical question–is Locke a member of
the ancient, in some ways,
Ciceronian and Thomistic tradition of natural law or a
modern Hobbesian? Do his politics derive from a
theological conception of divine workmanship or an ultimately,
you might say, naturalistic conception or
account of the human passions and the struggle for survival?
Do his priorities go to duties or to rights?
Or is Locke simply confused? Is he confusing two different
languages or is he being intentionally ambiguous in his
account? A recent book,
by a well-known scholar of Locke has argued,
I think quite powerfully in some ways,
that Locke’s idea of equality in the state of nature
specifically relies upon a certain kind of Christian
theological context of argument. Locke’s statement in paragraph
four of the Second Treatise,
his statement that “there being nothing more evident than that
creatures of the same species and rank,
promiscuously born to all the same advantages of Nature,
should also be equal to one another.”
That Locke’s statement that creatures of the same species
and rank should be equal to one another,
this is said to rely upon and depend upon a very specific
religious argument. What it means to belong to a
species and why belonging to the same species confers a special
rank or dignity on each of its members only makes sense,
according to this recent interpretation,
if you believe or if it is believed that the species in
question has a specifically moral relation to God.
The question, I think, is whether Locke’s
idea of equality in the state of nature,
or his idea of the moral law in the state of nature,
relies upon this belief, or whether it can be inferred
from such things as the basic principles of freedom,
whether this can be inferred, as it were, from purely non
theological, naturalistic premises or grounds.
Locke, to be short, is silent in the Second
Treatise about the theological foundations of his
position. There are no discussions of
important theological figures, such as Jesus or St.
Paul or the New Testament, at least in the Second
Treatise; he discusses these issues at length elsewhere.
These may be, in some way,
thought of as background considerations,
but the question remains, I think, for us whether these
are deeply embedded in Locke’s arguments about divine
workmanship or whether or not that language of divine
workmanship simply serves as a kind of window dressing,
again, for a purely secular naturalistic theory of human
nature and political authority. Very important issue,
I think, in coming to understand Locke and indirectly,
very important for how we come to think of the American regime
because–I’ll just say, simply as a kind of footnote to
what I’ve been saying–if Locke is thought of in some ways,
as his doctrine as being, in some ways,
at the founding principles of the American regime,
the Declaration of Independence most notably,
it becomes very important. It becomes part of a
contemporary public argument whether those foundations owe
their authority to some kind of theological doctrine,
as Jefferson calls it in the opening of the
Declaration, “the Laws of Nature and
Nature’s God,” seems in some way to have
Lockean overtones to it. Do our founding documents imply
a theology of some kind, “the Laws of Nature and
Nature’s God,” or are those principles,
again, purely of a naturalistic secular kind that can do without
theology altogether? That is an argument,
a kind of scholarly and academic argument,
to be sure, but it spills over into many of our public debates
over the role or place of religion in public life,
whenever we talk about issues of the appropriateness of issues
like school prayer or should the Ten Commandments be publicly
displayed in courthouses or in other public places?
Or if you want to take another famous Jeffersonian position,
is there a kind of absolute firewall,
a wall of separation, between religion and the state?
These issues that we very much work on today and think about
are, you can see, deeply embedded in how we think
about Locke and those opening sections of the Second
Treatise dealing with natural law and the state of
nature. So you can see,
again, how these ideas penetrate deeply into the marrow
of our public or political culture. Are we so different?
Have we become so different? Will people living
three-hundred years from now think of us as so different,
and our public debates so different, from those that
animated the public issues in the time of John Locke?
Maybe not. Maybe we aren’t that different.
So enough for contemporary. Let me go back to Mr. Locke.
The core of Locke’s theory of natural law in the state of
nature is arguably lodged in his account of property,
chapter 5 of the Second Treatise.
If you remember anything about Locke after this class,
remember chapter 5. It is, by all accounts–maybe
chapter 19 as well, “The Theory of Revolution,” but
chapter 5, account of property; certainly, in many ways,
one of the most characteristic doctrines of Lockean political
thought. Locke’s view of human nature is
that we are very much the property-acquiring animal.
Aristotle had said we were political by nature;
Locke says we are property-acquiring beings.
Our claims to property derive from our work.
The fact that we have expended our labor, our work,
on something gives us a title to it.
Labor confers value and is the source of all values.
The state of nature is a condition, he tells us,
of communal ownership, what Karl Marx would have
called “primitive communism.” The state of nature is given to
all men in common, Locke says.
Parts of it become private property only when we add our
labor to something. Let me read a famous formula
from sections 27 and 28. “Every man,” Locke says,
“has property in his person: this no body has any right to
but himself.” We all, in other words,
come into the world with a certain private property,
property in our person. No one else has a right to that.
“The labour of his body,” Locke continues, “and the work of his
hands, we may say, are properly his for labour
being the unquestionable property of the labourer,
no man but he can have a right to what is once joined to,
at least where there is enough, as good left in common for
others.” “That labour,” Locke says,
“puts a distinction between him and the common:
that added something to them more than nature,
the common mother of all, had done;
and so they become his private right.”
So we have moved here, in this one paragraph,
from the state of nature, which he says is common to all,
to a condition of rudimentary private property,
which we have in our body, our person,
which he says also includes the labor of the body and the work
of the hands, how we expend our activity.
That labor, he says, which puts something between us
and the common, becomes the source of ownership
of things around us, and that ownership then,
in turn, becomes a right. So they become,
he concludes there, his private right,
the source of a right to property.
The natural law, as Locke seems to be saying,
dictates a right to private property and it is to secure
that right that governments are ultimately established.
In a striking formulation, Locke tells us that the world
was created in order to be cultivated and improved.
Those who work to improve and develop nature,
who add to nature through the labor of their body and the work
of their hands, those who develop and improve
nature are the true benefactors of humanity, of humankind.
“God gave the world to men in common,” he says,
section 34, “God gave the world to men in common,
but since He gave it to them for their benefit and the
greatest conveniences of life that they were capable to draw
from it,” he writes; the world was given for our
convenience, he says, to be drawn from,
“it cannot be supposed He meant it should always remain common
and uncultivated.” And then he adds,
“He gave it to the use of the industrious and the rational and
not to the fancy or covetousness of the quarrelsome and
contentious.” God gave the world for our
improvement of it and therefore, He gave it to the industrious
and the rational. Locke seems to suggest in that
very phrase that the state will be a commercial state,
that the Lockean republic or the Lockean state will be a
commercial republic. Think of that.
Ancient political theory, Plato, Aristotle,
regarded commerce, regarded property,
as in many ways subordinate to the life of a citizen.
Plato would have instituted a kind of communism of property
among the guardians of his Kalipolis.
Aristotle thought of the necessity of private property,
but simply as a means to allow a few of those citizens,
to engage in political life. Economy, you might say,
was always subordinate to the polity.
Locke turns this ancient and medieval doctrine,
as well, on its head in many ways.
The world belongs to the industrious and the rational,
those who, through their own efforts,
through their labor and work, increase and enhance the plenty
of all. It is only a relatively short
step from John Locke to Adam Smith, in that respect,
the great author of The Wealth of Nations,
again, just under a century after Locke’s Second
Treatise. For Locke–and let me just go on a little more
about this–there are no natural limits to property acquisition.
And this is, in a way, the essential point.
The introduction of money or coinage into the state of
nature, an issue I’m not going to talk much about here,
but that becomes an important moment in his chapter 5 in his
account of the state of nature, the introduction of money makes
unlimited capital accumulation not only possible,
but even a kind of moral duty. It becomes our duty to enhance
and work upon the raw materials of the natural world around us.
By enriching ourselves, we unintentionally work for the
benefit of others. Consider the following
remarkable sentence: “A king of a large and fruitful
territory in America,” he says, “feeds,
lodges, and is clad worse than a day labourer in England.”
Because, of course, our work, Locke thinks,
has enhanced the plenty of all in some way.
The creation of a general plenty, the common wealth–and
think of the way in which the revealing use of that term
“common wealth,” the wealth of all–is due,
in many ways, to the emancipation of labor
from the previous kinds of moral and political restrictions
imposed upon it by the ancient philosophical,
as well as religious, traditions.
Labor becomes, for Locke, his source of all
value and our title to common ownership and in a remarkable
rhetorical series of shifts, he makes not nature,
but rather human labor and acquisition the source of
property and of unlimited material possessions.
He begins this chapter, chapter 5, with the assertion,
think about it, that “God hath given the world
to men in common,” once again suggesting that the
original state is one of common ownership.
He then suggests that every person is the owner of their own
bodies and that one acquires a title to things through labor
that we have mixed with that common world.
But what starts as a very, very modest title to the
objects that we have worked on, his example is something as
simple as picking apples from a tree, the act of picking gives
us a title to the apple, that very simple or rudimentary
form of property soon turns into a full scale explanation of the
rise of property and a kind of market economy in the state of
nature. “Labor accounts,” he tells us,
“for ten times the amount of value that is provided by nature
alone,” he says at section 37. Our labor enhances the value of
nature ten times. But he then goes on to add very
quickly, “I have here rated the improved land very low in making
its product but as one to ten when it is much nearer a hundred
to one.” Our labor advances things a
hundred-fold. Shortly later,
in section 43, he says that the value of
anything is improved a thousand-fold due to labor.
Again, what began as a fairly rudimentary discussion of the
origins of private property at the beginning of chapter 5,
limited by the extent of our use and spoilage,
has, by the end of that same chapter,
you might say, morphed into an account of
large scale ownership with considerable inequalities of
wealth and possession. By the end of chapter 5,
there appears to be almost a direct link between Locke’s
dynamic theory of property in chapter 5 and James Madison’s
famous statement in Federalist No.
10. As Madison says,
“the protection of different and unequal faculties of
acquiring property is the first object of Government.” Seems a very Lockean
proposition in The Federalist.
Locke gives, in other words,
to commerce, to money-making,
to acquisitiveness, a kind of pride of place and a
sort of moral status, you might even call it,
that it never enjoyed in the ancient and medieval worlds.
The new politics of the Lockean state will no longer be
concerned with glory, honor, thumos,
virtue, but Lockean politics will be sober,
will be pedestrian, it will be hedonistic,
without sublimity or joy. Locke is the author of the
doctrine that commerce softens manners, that it makes us less
warlike, that it makes us civilized,
something that reaches its, you might say,
highest expression in the twentieth chapter or the
twentieth book of Montesquieu’s Spirit of the Laws.
Commerce does not require us, for Locke, to spill blood or
risk life. It is solid,
reliable, thoroughly middle class in some ways.
Locke is, again, the great author of the idea
that the task of government is to protect not just the rights
of property, but the right to acquire and
build upon the property that we already own.
So I want to end on this note and begin on Wednesday talking a
little bit about what we might call John Locke and the spirit
of capitalism.

Maurice Vega

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