John Locke, Political Power and Locke’s Law of Nature

by Tom Wolpert on December 22, 2013

Political Power According to Locke

Lock’s First Treatise of Government is dedicated to ‘detecting and overthrowing the false principles of Sir Robert Filmer,’ advocate of the divine right of Monarchs, and necessarily, one whose view of mankind is anything but egalitarian.  After shredding Filmer at length, Locke moves to his Second Treatise of Government, setting up the true origin, extent and end of civil government.  Although one would like to start with Locke as a primary and unblemished source, take him as his word as a kind of axiomatic starting point, even the first entries in the Second Treatise demonstrate that Locke was so determined to defeat the rights of kings and monarchs, that he erects an unpersuasive ‘Law of Nature’ to justify points that more easily and naturally are expressed, for example, in the opening lines of our Declaration of Independence.  Locke’s Law of Nature is a kind of amalgamation of hypothetical ‘law’ in a state of unbridled nature, natural law (that which appears to arrive spontaneously in any civil society), and imaginary exercises in the conduct of individuals impossibly separate from any civil society at all, which would be rather unpersuasive, except for the conclusion he manages to reach, which is quite persuasive still. Locke’s Law of Nature never did exist and never could, as an explanation of the source of primary rights adhering to individuals which are unalienable.  But if we are going to probe into the ‘why’ of ‘why are men endowed by their Creator with certain unalienable rights, including the right of life, liberty and the pursuit of happiness’ – we may as well start with Locke, if for no other reason than the Founding Fathers and authors of the Declaration of Independence did so, more or less – if his departure was suspect, his arrival was great.

Locke’s thumbnail summary of political power, at the beginning of The Second Treatise, is one remarkable sentence, terse and easy to quote in its entirety:

Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the commonwealth from foreign injury; and all this only for the public good.

Locke wants to separate ‘political power’ from what he wants to characterize as men in a state of nature.  Locke begins in a somewhat circular fashion: political power is a ‘right of making laws’.  How does the community acquire this right, one may well ask (or does it need to acquire such a right, perhaps the community, however that is defined, had it all along).  Today we are firmly embedded in the notion that government derives its just powers from the consent of the governed, although the ‘consent’ in practice differs quite widely from ‘the governed.’  Even today, typically only about 50% of the population votes in a Presidential election, and much lesser percentages often vote for the state and federal legislative offices whose victorious candidates actually pass the laws by which we are governed.  Political suffrage, the right to vote in state elections, at the time our Constitution was drafted was certainly much less than 50% of the total population.

Locke was engaged in a dialogue with Robert Filmer about who had this right of making laws, and Locke wants to justify his assertions by contrasting his view of the source of political rights with Filmer’s.  But since we don’t care  about Filmer or the divine right of monarchs, perhaps it is more candid to say that, in our minds, there is no alternative to assigning the right of making laws, except to assign that right to the people in a collective sense.

The Declaration of Independence begins in this manner: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed[.]

One would like to end the discussion there, much as if to say, 2 + 2 = 4, how much is there to talk about? But when the Communists guided by Marxist-Leninist theory operated in the Soviet Union, their doctrine (not just their practice) was that political power and the right to make law was vested in a vanguard communist party.  The doctrine of Communist China today is much the same, although the practice is mercantilism. Today, the doctrine (not just the practice) of many Islamic states is that political power derives its just powers from divine revelation, made first to Mohammed, then subsequently to the true followers of Mohammed who are the religious mullahs.  Naturally, determining who the true followers of Mohammed are has difficulties.  Locke excoriated Filmer, since after Filmer posited the divine right of kings first to Adam, Filmer couldn’t track any clear line of the descent of this divine power to anyone else, and certainly not to anyone living in Locke’s day.  All descent-based systems for passing political power have certain inherent difficulties (witness the recent events in North Korea), not the least of which is identifying unambiguously the right descendant.

Apparently, being ‘self-evident’ does not quite live up to its name.  What cannot be externally justified must simply be asserted.  So we assert that the right of making all laws is vested in the people, because that is who and what we are – a set of people who believe they are, collectively, the sole repositories of the right of making laws.  Individually, we may be differing religions, or no religion at all.  We may have starkly different views on who composes the community (witness the current controversy over immigration and the right process to legitimize illegal aliens), but those problems are derivative from our first, assertive step.  Moreover, like Locke, we believe that this right vested in the community is an absolute right, it includes the right to ‘make laws with penalties of death’ (which is a much different argument than whether the death penalty in its application is wise, or fair, or whose cost-benefit analysis does or doesn’t pass muster).  All lesser penalties are included.  The state, once composed by a just representation of political power deriving from the people, has a monopoly of power.  No matter how angry I am at my neighbor, and no matter what cause he has given, in the civl society we have I may not invade his home to inflict a personal revenge (in Locke’s state of nature, I would be entitled to exact a perfectly proportionate punishment).  No matter how angry I am at the government, and no matter how poorly, or preposterously they govern, nor with whatever degree of greed, corruption or partisan divisiveness, I may not overthrow them except by means which are consistent with the laws for such change in leadership, or which are justified by some overarching justification.

Self-Determination and the Political Line-Drawing Angels

Our Declaration of Independence addresses this point: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  Even where the form of government has become destructive,  it is a “Right of the People” to alter or abolish it to establish a different government.  My individual preferences are not determinative.  Although by virtue of being a living being, I get life, liberty and the pursuit of happiness as an inalienable right, my preferences as to a form of government or law or leader do not yet carry with them political rights, except in social connection with others, so many others that we all together may be fairly characterized as “the People.”  President Wilson promulgated his 14 Points, including several that dealt with the right of self-determination, at the end of World War I to guide the negotiations concluding that war.   Which particular ethnic, geographic, religious or political grouping was accorded the title of the ‘people entitled to rights of self-determination’ was not obvious at all, and engendered bitter political quarreling and armed clashes.  Today, does Serbia have rights of self-determination, or does the geographically smaller enclave Kosovo have the right of self-determination to secede from Serbia, or how about the Serbs located primarily inside the northern part of Kosovo – could they have rights of self-determination to secede from Kosovo?  The political process of drawing lines for electoral districts in our country, in theory to promote local self-determination as to choosing elected representatives, but in fact to achieve a predetermined political end, is called Gerrymandering.  If only the political angels from heaven would come and forcefully draw new, fair lines for purposes of self-determination, all would be well, but, alas. . .

Property Rights and Human Rights

After determining that political power means a right of making laws with penalties of death and all punishments less, Locke astonishingly goes on to say that this is done for ‘regulating and preserving of property.’  This kind of statement begs a whole host of questions.  When a dog grabs a bone, whether it is from a trash can or another dog, or gets the bone from its owner, no one calls the bone the dog’s property (perhaps the owner’s property, but not the dog’s).  Property is a legal concept – it includes both ownership or beneficial use, and the right to maintain and continue that ownership or use, and the justified expectation that society will collectively honor and protect that ownership.  An ant may have constructive possession of the dead insect that it drags across your driveway to bring to its nest, but no one suggests that the ant ‘owns’ the dead insect.  If another ant comes along from a different ant colony and takes it, well, all’s fair in love and war.  That is the state of nature.  Blue Jays are quite mean and aggressive to other birds, but none of the other birds organize alliances in groups of different military specialty to resist Blue Jay aggression.  The state of nature recognizes no legal titles, and has neither pity nor interest in the outcomes of individual conflict.  So when Locke uses the word ‘property’ he already assumes into existence a society that recognizes and defends legal titles, and concomitant with that, the power to sell, mortgage, lease, give away, commit to a trust or devise in a will such property, for example, to one’s children.  But Locke’s words surprise us for a different reason – today most people aren’t thinking about the requisites and consequences of property law when they read words about the purpose of law, rather they would be intuitively expecting that the power of making laws is accomplished for regulating and preserving of human rights. Is society all about owning property?  Have the progress and development of human affairs moved us further along in the past 400 years, so that we have advanced beyond these antiquated notions of society’s chief interest being the preservation of property rights?   Perhaps the concept of human rights subsumes the concept of property rights, but includes a great deal more besides – that would help us to rehabilitate Locke’s statement here.  Given Pope Francis’ recent pronouncements about social and economic systems and the rights of the poor, it would appear that a conflict exists that will not be resolved neatly.  We come to a bit of a fork in the road here, in our consideration of Locke.  Do we think he is fundamentally right about the purpose of law, or not?  We could revise Locke, the way translations of the Bible are subtly revised, to be more modern, more politically correct or more sensitive and appealing.  Just explain away this unfortunate choice of words – we know what he really meant.  We could assert that Locke meant what he said, and is just wrong or at least starkly incomplete.  Human rights are more important than property rights.  The notion of human rights in the 17th century, which included a markedly inferior legal position for women, and for people who did not own real property, and of course for Africans being traded as slaves, is so retrograde that it needs to be dumped so completely, so thoroughly, that it is never even seen again, even in a blog post.  Perhaps, after all, we should rejoice that over the last 400 years, something profoundly worthwhile has been accomplished by the sacrifices and struggles of so many.   For purposes of this discussion, I will nakedly edit and amend Locke’s statement to read, ‘for the purposes of preserving human and property rights.’ but acknowledge that the conflict brewing between those two systems of understanding is not going away.  You cannot simultaneously preserve good legal titles for individual property ownership, and also massively redistribute property based on concepts of human rights or social justice (no matter whose concept of social justice you want to use) – but we will let that go for another day.

A Monopoly of Force

And employing the force of the community, in the execution of such laws . . . ” Not much controversy here.  Almost everyone agrees that that, pursuant to just ends and using just means, legitimate political power gathers and exclusively exerts the force of the community, including the power wielded by the policeman or the sheriff.  A monopoly on the use of force, even violence if necessary, is the prerogative of the civil authority.  “And in the defense of the Commonwealth from foreign injury; and all this only for the public good.”  The public good part of this used to be more of a given.  Today Stand-Your-Ground-laws are controversial from a number of different viewpoints, not the least of which is they reflect the view that expanding the rights of individuals to break into the state’s monopoly on the use of force or violence is a good idea.  We won’t really see a political challenge to stand-your-ground laws until we see more than one individual invoking that right in one firefight.  Can one group of drug dealers, who happen not to be drug dealing that day, but attending a wedding or a parade or some such festive event, stand their ground and defend against another group who has come to hunt them down and exact revenge?  Generally, drug dealers don’t have permits to carry weapons, so perhaps that will avoid that legal controversy, although it is easy enough to imagine a broad and general melee among attacking drug dealers, defending drug dealers, off-duty police, and armed citizens standing their ground, creating general havoc and tragedy at a public event.  If one individual has the right to carry arms publicly, do 120 individuals, all wearing a distinctive uniform and marching in unison, divided into orderly squadrons of twelve each, have equal rights?  We saw conduct like that in this country employed by the Klu Klux Klan, so perhaps we will again.  John Locke would not approve, and I join him in his disapproval.

Locke’s State of Nature

To mount his challenge to the divine rights of kings, and the necessary political inequality between monarch and subject which is its essential prerequisite, John Lock employs an imaginary state he contended all men are naturally in.  Locke considered that a ‘state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave, or depending upon the will of any other man.’   There is no way a modern reader can accept Locke’s premise here at face value.  There is no such thing as a state of perfect freedom; anarchy and lawlessness are brutal reminders of what human societies degenerate to in the absence of law, custom, direction, order or code.  The only possessions men and women have in such circumstances are those which they can defend against robbery and attack; there is no law or police to defend them, no protective civil authority, and people are absolutely subject in such a state to the will of whoever is momentarily stronger, more brutal or has greater military strength.  Locke posits all the benefits of a civil society, but somehow wishes it away at the same time for the sake of his hypothetical inquiry, much as if we were to talk about living in houses which have no foundations or floors.  Locke’s use of the ‘law of nature’ means almost whatever he wants it to mean; it may invoke God, but not too much (Filmer was always invoking God, and the Christian Church generally had not been an advocate for the type of organized civil rights and egalitarianism Locke wanted to pursue). Locke’s use of the term ‘law of nature’ bears no resemblance to what we would call the ‘law of the jungle’ – rather, he captures all the benefits of law that he wishes to obtain, then dispenses with the governing authorities, courts, magistrates and sheriffs which establish and defend such benefits.  After declaring that Locke’s vision and point of departure is not very persuasive, one is left with the harder question though, posed earlier in this post. Why are men and women endowed with any inalienable rights?  Can we reason from any point of beginning to end at that statement?  We probably could find a host of political and moral philosophers, operating after the fact of our Revolution, who would present answers to those questions, starting from an equally varied array of beginning points.  But, historically, that’s not how we got where we are, politically, historically or in terms of the political theory that undergirds both the Declaration of Independence and the Constitution.  It’s worth noting that the Declaration of Independence takes a theological position as an initial point of departure: ‘endowed by their Creator with certain unalienable rights.’   But there was no theological agreement between or among the Founding Fathers that led to the Declaration of Independence – except possibly a kind of theistic rationalism – Thomas Jefferson wasn’t trying to make a statement about shared religious belief and its necessary political consequence.  I believe in Christian revelation, but the Declaration of Independence is not an example of it, except in the broad and general sense that everything flows from the hand of God.  So there has to be more in Locke that we need to find.

Paying the Iron Price

Locke posits in his state of nature a state of equality, as being born provides each of us with the same advantages of nature, and use of the same faculties, so that we are individually equal to one another without subordination or subjection.  This certainly is true of rabbits, for example, or sea turtles, or butterflies.  They have neither master nor servant – notwithstanding books like Watership Down which uses imaginary rabbit societies to make points about human civic organizations.  But it is inaccurate to suggest that of human beings.  To exist at all, human beings are socially organized. All human beings are born into families and almost invariably maintain family relationships as a fundamental social building block.  Families turn into extended clans, which ultimately behave, often enough in the absence of civil authority, like those warring clans of the hill country, the Hatfields and the McCoys.  Sporadic violence, retribution, vengeance, retaliation and blood feuds among extended family groupings, then further extended and differentiated by blood, language and custom, are the rule, not the exception.  The historical development of feudalism was in response to the state of anarchy left by the collapse of the Roman Empire.  It wasn’t very jolly, which is why people would gather together and accept the lesser state they occupied in relation to a local knight, baron or feudal lord, in return for safety.  Warlordism soon becomes the natural state of man – everything is acquired by “paying the iron price” (courtesy of George R.R. Martin).

Agricultural societies only survive if they can set aside enough food to keep a private army in the field to defend their crops. We can only consider an individual, with respect to his or her rights as an individual, in the context of a family which nurtured him, then a civil society already existing which keeps that individual from being plunked on the head by a group of bandits.  Organized self-defence is absolutely the first set of political acts.  (As the Preamble to the Constitution puts it: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.)

Historically in our country, the Bill of Rights followed after our Declaration of Independence, after our successful Revolutionary War, after the Articles of Confederation, and after the drafting of the Constitution of the United States.  The Federalist Papers advocated and provided reasons for the passage into national law of the U.S. Constitution to interested but undecided political leaders and politically active citizens of various states – the Federalist Papers and their arguments and concerns precede the Bill of Rights, both chronologically and logically.  Only after we have a stable society, do we attend to preventing federal abuses against individual loss of liberties.

The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions: for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign Master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorize us to destroy another, as if we were made for one another’s uses, as the inferior ranks of creatures are for ours.   Locke’s Second Treatise, Section 6.

One Omnipotent and Infinitely Wise Maker (whose Specific Opinions Remain Somewhat Inscrutable or at Least Open to Discussion)

Here Locke so qualifies his state of nature as to attribute its real justification to the purposes of one omnipotent and infinitely wise Maker.  Perhaps in our political lives today we have run away too quickly from rooting our rights and obligations in a statement of theology.  But God-talk is rarely a fruitful way to conduct a political discourse.  It always seems to turn out that each person’s view of God and God’s actions and preferences in this world is always startlingly consistent with that person’s own political preferences.  Each participant could conduct every political dialogue with any adversary using the same opening phrase: ‘The Bible says this, or natural religion holds this, or the Church says this, or Isaiah says this, or Jesus says this, or the Koran says this’ – and then go on to say what they mean to say anyway.  The response can be couched in the same preamble.  These aren’t just my views, this is what God says!  In an earlier post I commented on a guest pastor who presented his advocacy for resisting cuts to the federal food-stamp program on just such grounds (as a pastor though, he speaks exclusively in a setting where I appear voluntarily).  But that is where John Locke starts, and that is where the Declaration of Independence starts – by invoking God’s act of natural creation as a starting point.  We criticize Islamist theocracies for grounding, or asserting they ground, their civil laws in Sharia Law.  But historically, we have asserted our political equality on exactly those grounds to start.  All are not ‘equal and independent’ in a state of nature, except in the sense that a bird is independent – although perhaps that is where Locke would like us to begin.  The use of the word ‘ought’ (as in Locke’s “ought not to harm”) is a moral word, with moral consequences, and the meaning of the ‘ought’ of John Locke is deeply informed by 3500 years of Judeo-Christian practice, social organization and religious writing.  It doesn’t follow from a state of nature that we ought not to harm each other – nature would be equally content if we devoured each other for breakfast as long as we accomplished procreation first.  Being the workmanship of one infinitely wise Maker does not itself advance the discussion, except it does highlight that we all  get the same equipment at birth: eyes, ears, brain, heart, blood, lungs, hands, feet, legs, etc.  There is clearly a fundamental natural equality at work there.  But the operative word, the key concept here is ‘ought’.  We ought not to harm one another.  We ought not to take anyone’s life health, liberty or possessions (there’s Locke again, defending the right of private property – he never gives up on that).  There cannot be any subordination among us, because we share in one community of nature, created by one Maker.

Even Though Your Blood and My Blood are Equal, Your Ought May Differ Starkly from My Ought

The discussion of what ‘ought’ means for us today can become quite circular – like God-talk, every person’s ‘ought’ is exactly consistent with his or her political opinions.   Ought isn’t a law of nature and doesn’t follow from the laws of nature.  Backing up a little into Locke’s description, we are on safe ground to say that there should not be any subordination among us.  Is there subordination in our society today?  Most people would say: absolutely, big time.  But their answers as to why there is subordination among us may differ starkly.  Some of them may say that subordination exists because the federal government is itself oppressive, irresponsible, dominating, dictatorial, intrusive, hopelessly addicted to debt and money-printing and vote-buying through unpaid benefit handouts, and injecting itself in every aspect of our lives in a way that is neither democratic, nor consistent with the principles of self-government – Obamacare being just the latest example in a long train of usurpations, abuses, etc.  From this perspective, advocates of greater or more activist federal government are like Filmer advocating the divine right of monarchs – just substitute the feds for the kings, and Robert Filmer is alive and well.  From this perspective, John Locke would be writing against this unwarranted encroachment of power and control by the federal government itself.  That is the subordination which is to be resisted.

Finding Subordination, Opposing It, Perception and Direction

From a different viewpoint, the subordination revolves around the distribution of wealth.  The current debate about how much of America’s wealth the top 1% own, and what the political consequence of that is, is not a new debate, but the debate has been stoked by Pope Francis, and the debate is stoked because we want to move our political ball forward.  Even apart from the current left-right political sniping, even apart from the moral exhortations of a religious leader who has explained to us what ought to happen but not explained to us how – we in America, as Americans, want to move our political football forward.  We want to move our political theory forward, because we are idealists.  We want a society that has never yet existed – that was our point of departure in 1776, and it remains our first and best goal today.  Locke may be helpful to us here – helpful because he clearly hates subordination, which he associates with monarchs and the hated divine right of kings – helpful because he is an idealist who wants to imagine a state that does not yet exist – but helpful also because he is a big private property man.  If the problem is that the subordination caused by gross unequal distributions of wealth is holding us back, stalling the train, corrupting and distorting the political process, then how do we address that problem without upending the extraordinarily foundational notions of private property, and legal title to to one’s own goods, possessions, and the fruit of one’s labor? Vast schemes of severe taxation typically result in broken economies and widescale tax evasion, avoidance and general disrespect for the government.  The people who are supposed to be collecting such taxes are often the most flagrant in avoiding and evading them.  Any Marxist fool can posit a society without private ownership of property, but then they can never explain why anyone would get up to go to work, except at the point of a bayonet.  China is an example of a society that has embraced all the undemocratic and oppressive political machinery of communism (bayonets galore), and then, to move its economy and keep stark poverty from creating uncontrollable civil disobedience, has adopted capitalism and accepted the negatives of businesses operating without the restraint of beneficial laws for the protection of the people.  Capitalism is powerful, and even a cursory reading of the Federalist Papers discloses that one of the chief selling points of a stronger federal government under a strong, federal Constitution was that it would advance the interests of commerce, industry and trade.

If we want to move the political ball forward because we are idealists, what direction is forward?  We all want to resist subordination, but how?  Is one man’s dream of being a multi-millionaire  necessarily at conflict with another woman’s dream of an egalitarian society?  The authors of the Federalist Papers thought they could advance both arguments simultaneously, but not without essential divisions and separations of political powers. One cannot impose a dream – but one can agree with others on a political direction to accommodate many dreams. Locke did not seek to create utopian societies.  But why is my home state of Pennsylvania incapable of satisfying the objections to federal power of the first group of ‘subordination-opposers,’ and not equally capable of meeting the aspirational concerns for egalitarianism of the second group of subordination-opposers?  The Commonwealth of Pennsylvania certainly seems to meet the basic definition and prerequisites of political power.  What political power does Pennsylvania lack, such that it could not accommodate many dreams?  But more on this as we follow through on John Locke.

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© 2013 Thomas Wolpert

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