Ethics Discussion 3

THE SECOND TREATISE ON GOVERNMENT Ch. 1—on political power §2-3: political power defined Ch. 2—on the state of nature §4. All men naturally in a state of perfect freedom to order actions, dispose of possessions and persons, within the bounds of the law of nature, without asking leave or depending upon will of any man. What is the law of nature? Reason—see section 6.

This is also a state of equality: all power/jurisdiction is reciprocal, i.e., no one has more than any other. It is “evident”—nothing could be moreso—that creatures of same species/rank born to same advantages of nature and same faculties are equal, unless God Himself should obviously set one above another by an “evident and clear appointment,” i.e., the sort of thing that one could not be wrong about.

§6. Liberty is not identical with license. Liberty accords with the law of nature. What’s that? Reason. Liberty, then, is rational freedom. In the state of nature all men are obliged to the law of nature, which teaches all men who will but consult it. What’s the problem here, then? Not all men will consult it. If men consult it, it teaches that they are all equal and independent, the workmanship of God and therefore free from molestation by other men. Because of this and their equivalent faculties, there is no natural subordination of one man to another, therefore no man has a right to destroy or use any other man. The law of nature says every man is bound to preserve himself and, when there is no conflict, to preserve the rest of mankind. §7. Since the law of nature wills peace and the preservation of mankind, in the state of nature every man has the responsibility for executing the law of nature. Every man therefore has a right to punish. Why? It’s because the law of nature would be in vain without penalties attached. Since state of nature is a state of perfect equality, there is no natural judge to whom to appeal. Every man is his own judiciary and his own executive. §8. Thus in the state of nature man has power over another only when that other violates the law of nature, which is reason. This power, however, is limited to what is required for restraint and reparation. Punishment is not vengeance but the making whole again of the injured and the teaching of the offender not to do it again. The standard in nature is the law of nature itself, which is to say “reason and common equity,” which is the measure set by God for men’s security. §11. Because of the duty to preserve all mankind, all men have the right to punish violations of the law of nature; reparations, however, can only be taken by the one who has been harmed. The criminal who violates the law of nature has abandoned reason, the “common rule and measure” God has given to mankind, and by his deed has declared war on all man kind. Like a dangerous beast, he may be slain—he has abandoned his humanity.

§12. What about lesser breaches? Should they be punished by death? No, but with degree and severity that make it an ill-bargain for offenders. §14. Who really lives in this state today? Rulers. International relations is the state of nature. Ch. 3—on the state of war §16. State of war is state of enmity and destruction declared by sedate settled design on another mans life. it is reasonable that the one so threatened has a right to destroy the source of the threat. All men are to be preserved, but when that is not possible, the safet of the innocent is to be preferred. §17. The one who puts himself into a state of war may be destroyed, and the one who attempts to enslave someone puts himself into a state of war with that person. Slavery is thus a violation of the natural law and therefore unreasonable. The slave can legitimately slay his so-called master. §19. The difference between state of war and state of nature, confounded by Hobbes, consists in this: men living together according to reason without a common superior, with authority to judge between them, is the state of nature. This is the state of nature in the high sense. In the low sense, as Locke has implicitly admitted, it’s Hobbes. §20. State of war continues until the aggressor sues for peace on terms acceptable to the aggrieved. If that doesn’t happen, it continues until the aggressor is destroyed (remember, his actions declare himself at war with all mankind—that’s why it doesn’t end if the aggrieved party is destroyed). §21. To avoid this state of war, men form governments. Ch. 4—on slavery §23. Man cannot voluntarily enslave himself, and forcible enslavement is, as we have seen, a cause for war. Ch. 5—on property §34. God gives world to men in common, for their benefit, He cannot have meant it to be uncultivated. §37. Appropriating land to oneself does not lessen but increases the common stock of mankind. Who makes better use of land, the farmer with one acre or the nobleman with a hundred acres? Locke’s argument is the small farmer will make better use.

§42. The “wise and godlike” prince will promote cultivation because it benefits all of his people. How does the protection of private property benefit all? It allows the poor to acquire and therefore change their station. §44. The great foundation of property is labor. Ch. 6—on paternal power §52: reason and revelation both tell us that it’s parental power, not paternal power. The mother has at least an equal right with the father (maybe even more). Revelation confirms this. Locke speaks extensively of the dignity and equality of women in the First Treatise. §54. This is important—Locke admits that there are some kinds of inequality: Age, Virtue, Excellence of Parts and Merit; Birth may subject some and Alliance or Benefits others to pay honor to some who deserve such, either by nature, gratitude, or somewhat else. Yet these inequalities are consistent with equality. §55. Children—born to equality but not in it. They live in bonds to their parents until reason and age free them. This is in accordance with the natural law, which not only prescribes rights but also imposes duties – in this case, the duties of parent to child. §57. Children, born ignorant, do not fall under the law of reason immediately as Adam did. Someone who lacks reason is not free and cannot be free. Note also lines 10-14: the only way the law of nature can be justified is if it does this. Our freedom is secure under the law of nature (reason) because it directs us away from what is detrimental to us. Liberty and freedom are identical; where there is no law there is no freedom. §58. Parental power arises from duty to children under the natural law. God gave man reason and therefore free will under the law of nature. When man is not in that state, someone else must will for him just as someone else must understand for him. Children are like Aristotle’s natural slave, but for Locke they grow out of it. Without reason or understanding the will has no validity. Others have to be responsible for those who are in this position. The question to ask is: how strictly are such distinctions drawn? Can one usurp someone else’s will on the grounds that, even as an adult, someone continually makes self-destructive and bad decisions? Ch. 7—on the beginnings of political societies §77. Fairly straightforward Also pre-political societies (usefully compared to Aristotle)

1. Man and wife 2. Parents and children 3. Master and servant (servant is not the same as slave for Locke – servants are

paid; selling your labor is consonant with the law of nature) Ch. 8—on the ends of political society and government

§91 and 95. This is fairly straightforward. Locke’s point is that no one can leave the state of nature unwillingly. Ch. 9 – of the ends of political society and government §123. Why leave state of nature? Most men are not observers of justice and equity. §124. Chief end of government is the preservation of property and persons of the citizens. Also introduction of what is lacking in state of nature. First legislature; then (§125) judiciary and (§126) executive. §127. State of nature is an ill condition §128. Two powers in the state of nature §129. First power is given up to regulation by law. §130. Second power is wholly given up. §131. Limit and purpose of government. Ch. 10 This is basically comparative government. Locke’s most important point: what kind of a government a government is will be determined by where the legislative power is placed. §133. Locke is holding his cards back at this point: any independent community is a commonwealth. Ch. 11—extent of the legislative power §135. FIRST it cannot be absolutely arbitrary over the lives of the people. Why? See lines 9-12 especially. Lines 21-23: what the legislature can never do. Lines 26-27: even the legislature is bound by the law of nature. §136. SECONDLY, the legislature cannot just make it up as they go along. Laws must be promulgated, and judges must be authorized. Compare §90-91 on the need for such judges. §137. There is no consent to tyranny or absolute monarchy. Lines 23-27: without the rule of law, life under government is worse than state of nature. §138. THIRDLY, the supreme power cannot take property from anyone without consent (but compare §120, lines 11-16). Lines 12-17 seem to indicate government can regulate property, but it cannot do so arbitrarily. In governments with a permanent rather than

variable legislature, there is a danger that such a legislature will become a faction (compare Federalist No. 10). §139. Again, property cannot be taken by government without the consent of the property-owner. Note also that he makes an important distinction between absolute and arbitrary power (this distinction might make a good paper topic). Absolute power may be legitimate in the defense of the commonwealth—Locke’s example is military discipline. It’s an absolute power, but not arbitrary: the sergeant can order the soldier to “march up to the mouth of a Cannon” but cannot command him to give over his property. Blind obedience in military matters is necessary for the good of the commonwealth—and this does not violate the self-preservation principle of the natural law, because the natural law is the foundation of the compact, and the compact results in not just rights but duties. §140.Taxes qua taxes are perfectly legitimate. Locke’s point is that those who benefit from the protection of government must contribute to the ongoing operations of government—but they must still do it under the rubric of consent (i.e., the consent of the majority). Levying taxes without the consent of the majority is a violation of the “Fundamental Law of Property” and therefore a violation of natural rights and a subversion of the purpose of government (which it to protect the life, liberty and property of the citizen). §141. FOURTHLY, the legislative power cannot transfer the power of making laws to any other hands. The people are the source of legislative power, and that power is vested in the legislative body. It is not thereby the legislative body’s power. It is still the people’s power, and as such the legislature cannot delegate it to anyone. Note that this is precisely what Congress does in the 20th century (see Landis, The Administrative Process and Marini, The Politics of Budget Control, especially chapter 6). Locke’s point is that it is a violation of natural law. §142. A summary. Note that all of these underlie the list of grievances in the Declaration of Independence. Locke’s earlier apparent indifference to the form of government is now abandoned; the end of this chapter shows that he is concerned with the right form. Leo Strauss calls this “natural constitutional law” (reference needed). Ch. 14—on prerogative §159. Prerogative is the right of the executive to act without the law and sometimes even against the law for the sake of the commonwealth. The first example Locke provides concerns the use of the pardoning power—the executive may pardon the guilty “where it can prove no prejudice to the innocent.” Locke’s crucial point here is that the law cannot do everything. §160. Prerogative defined—the rule of choice by the prudent executive regardless of the law. Thomas Jefferson’s Louisiana Purchase is a good example of this (Jefferson doubted that he could buy it; Spain ceded it to France on the grounds that it not be sold to another country; both Jefferson and Napoleon acted with prerogative).

Ch. 16—Conquest This chapter corrects Locke’s earlier, “idealistic” account of the origins of government; it also shows how radical he really is: the crucial point is that since most governments are founded in conquest, hardly any government is founded justly. If there is no consent, however, there is no commonwealth. Locke also addresses the limitations on the rights of the conqueror imposed by the natural law. It’s also very Jeffersonian – non-republican government is illegitimate. §192 – how unjustly founded governments can become legitimate: consent of the governed and security of rights (compare the Declaration of Independence). Ch. 19—on the dissolution of government; note that Jefferson borrows extensively from this chapter. §222. Again, the reason for entering into society—preservation of property; this is why they choose and authorize a legislature. Locke writes “whenever the Legislators endeavour to take away, and destroy the Property of the People, or reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are there upon absolved from any farther Obedience, and are left to the common Refuge, which God has provided for all men against Force and Violence” (lines 10-16). What is that refuge? The appeal to heaven. By breaching the trust the people had in them, the legislature has forfeited all authority. All of this also applies to the “supreame Executor,” who holds a “double trust”—he also violates that trust when he corrupts the representatives. This can be nothing but a declared intent to subvert the government— and, per §220, the governed need not wait until such subversion is accomplished to act in their defense. §223. This is not a recipe for anarchy or perpetual revolutions; people resist change in the forms to which they are accustomed. They are slow to give up their constitutions, and the implication—as Jefferson phrases it—is that they will endure while wrongs can be tolerated. §224. So—does this promote frequent rebellion? §225. The people will not make a revolution unless there is “a long train of Abuses, Prevarications, and Artifices, all tending the same way.” §230. Here, subverting just government is “the greatest Crime… a Man is capable of.”