Natural Rights By John Locke are foundational concepts in political philosophy, emphasizing inherent human freedoms. These rights, including life, liberty, and property, are not granted by governments but are intrinsic to every individual, a concept that John Chen at johnchen.net deeply appreciates as it reflects the core principles of leadership, technology, and business. Understanding and advocating for these rights foster a society where innovation and personal growth can flourish, laying the groundwork for ethical leadership and technological advancement. This understanding builds a foundation for civil liberties, individual sovereignty, and inalienable rights.
1. What Is the Significance of Natural Law and Natural Rights in Locke’s Philosophy?
Natural law and natural rights are central to John Locke’s philosophy, outlining moral truths applicable to all people. These rights, inherent and independent of societal laws, emphasize individual entitlements such as life, liberty, and property, shaping the foundation of legitimate political governance. Locke’s framework ensures stable enjoyment of these rights, advocating for resistance and replacement of governments that fail to uphold them, reflecting an essential aspect of human existence.
Locke’s concept of natural law dates back centuries, distinguishing between laws applicable to all by nature and conventional laws specific to certain places. This is often described as the difference between natural law and positive law. Natural law differs from divine law, traditionally revealed through prophets. Locke believed natural law could be discovered through reason and applies universally, while divine law requires special revelation.
Key Distinctions:
- Natural Law: Discovered by reason, applies to all.
- Divine Law: Requires revelation, applies specifically.
Locke saw no conflict between divine and natural law, provided God’s character could be understood through reason. Divine and natural laws can overlap but are not coextensive. Consistency with natural law was a criterion for interpreting Biblical passages. The rise of natural rights came through thinkers like Grotius, Hobbes, and Pufendorf. While natural law emphasized duties, natural rights emphasized individual privileges or claims. Scholars debate the relationship between these elements in Locke’s theory. Some, like Leo Strauss, prioritize rights, likening Locke’s views to those of Hobbes, emphasizing self-interest and preservation. Other scholars, like Dunn, Tully, and Ashcraft, see natural law as primary, with rights existing to enable the fulfillment of duties, such as not killing, enslaving, or stealing.
1.1 The Balancing Act Between Rights and Duties
The interplay between rights and duties is a crucial aspect of Locke’s philosophy. Some scholars argue that rights exist to ensure the fulfillment of duties, whereas others believe that rights are paramount. Simmons suggests that rights and duties are equally fundamental, protecting our ability to make choices within the bounds of natural law. He introduces the idea of a robust zone of indifference where choices are protected by rights but not solely aimed at fulfilling natural law.
Contrasting Views on Rights and Duties:
| Viewpoint | Emphasis |
|---|---|
| Rights-Centric View | Rights as paramount, focusing on individual privileges and self-preservation. |
| Duties-Centric View | Natural law as primary, with rights enabling the fulfillment of duties. |
| Balanced View (Simmons) | Rights and duties as equally fundamental, allowing for choices within natural law. |
Tierney posits that natural law and natural rights function as corollaries, evolving from medieval conceptions that included permissions to act or not act in certain ways. There have been attempts to reconcile these views. Zuckert acknowledges differences between Hobbes and Locke, grounding property rights in self-ownership, which Hobbes denied. Seagrave argues that divine ownership applies to humanity as a whole, while self-ownership applies to individual property ownership. God created humans capable of having property rights based on owning their labor, highlighting the nuanced integration of divine and individual aspects.
1.2 Navigating Reason and Natural Law
The extent to which natural law can be known by reason is another point of debate. Strauss and Laslett find contradictions in Locke’s theory, noting his denial of innate ideas and his assertion that morality can be demonstrated like mathematics. However, Locke never fully deduces natural law from first premises and sometimes seems to appeal to innate ideas. He also admits that no one has fully deduced natural law from reason alone.
Inconsistencies and Criticisms:
| Critic | Observation |
|---|---|
| Leo Strauss | Locke does not truly believe in natural law, using contradictions to signal this to attentive readers. |
| Peter Laslett | Locke the philosopher and Locke the political writer should be considered separately due to inconsistencies in their approaches. |
Many scholars reject this view, arguing that Locke’s admissions do not imply a complete failure to deduce any part of natural law. Yolton, Colman, Ashcraft, Grant, Simmons, Tuckness, and others argue that the Two Treatises passages are not decisively contradictory. While Locke doesn’t provide a full deduction in the Essay, his focus is on showing the possibility of reasoning with moral terms. Locke’s treatment of natural law was not as systematic as some might prefer, requiring reconstruction from scattered passages. Understanding Locke’s position requires situating it within the “voluntarism-intellectualism” debate. Voluntarists argue that right and wrong are determined by God’s will, while intellectualists argue that morality is arbitrary without an external standard.
1.3 Theological Aspects and Contemporary Relevance
Locke’s theory on the grounds and content of natural law requires careful consideration. He makes statements suggesting law requires a legislator with authority and that created beings must obey their creator. On the other hand, he implies an external moral standard to which God must conform. Locke avoids the idea that natural law is arbitrary. Herzog suggests Locke is an intellectualist, grounding our obligation to obey God in a prior duty of gratitude. Simmons suggests Locke is a voluntarist based on the preponderance of his statements. Tuckness proposes treating voluntarism as having two parts: grounds and content.
Perspectives on Voluntarism in Locke:
| Perspective | Grounds | Content |
|---|---|---|
| Herzog (Intellect) | Obligation to obey God based on a prior duty of gratitude independent of God. | N/A |
| Simmons (Voluntar) | Predominantly voluntarist, as indicated by the majority of Locke’s statements. | N/A |
| Tuckness (Hybrid) | Voluntarist regarding “why obey natural law?” as reason alone is advisory. Divine and human reason must be analogous for coherence. | Human reason and divine reason are similar enough that natural law will not seem arbitrary to us. |
Those interested in Locke’s contemporary relevance must confront its theological aspects. Straussians argue that the theological elements are primarily rhetorical. Others, like Dunn and Stanton, see Locke as limitedly relevant due to religious assumptions no longer widely shared. Authors like Simmons and Vernon attempt to separate the foundations of Locke’s argument from other aspects. Simmons argues Locke’s thought is overdetermined, containing both religious and secular arguments. He claims the fundamental law of nature is “as much as possible mankind is to be preserved.” Locke presents this principle in rule-consequentialist terms and hints at a Kantian justification emphasizing the impropriety of treating equals as mere means. Waldron explores the idea that Locke’s theology provides a more solid basis for political equality than secular approaches. Regarding the content of natural law, Locke states the fundamental law is that mankind should be preserved as much as possible. Simmons points to Locke’s list of duties, including preserving oneself, preserving others when self-preservation isn’t compromised, not taking life, and not acting in a way that “tends to destroy” others. Libertarian interpreters often downplay the first two duties. Locke’s earlier Essays on the Law of Nature include praise and honor of the deity as required by natural law, as well as good character qualities.
2. How Has Locke’s Concept of the State of Nature Been Interpreted?
Locke’s concept of the state of nature is multifaceted, sparking varied interpretations among scholars. At its core, it denotes the absence of a common judge with authority, where individuals coexist according to reason, unrestricted by earthly superiors. This state is distinct from political society, characterized by legitimate government, and a state of war, where reason is abandoned.
Many perceive Locke’s definition as straightforward: the state of nature prevails where no legitimate political authority exists to resolve disputes and where individuals adhere to the law of reason. This interpretation distinguishes the state of nature from political society, marked by legitimate government, and the state of war, defined by the abandonment of reason. Simmons challenges this view, arguing that Locke’s statement provides a sufficient, not necessary, condition. He argues that individuals in the state of nature might authorize a third party to settle disputes without leaving it, as the third party lacks legislative power for the public good.
2.1 Diverse Interpretations and Challenges
Simmons’s analysis highlights instances where people living under legitimate governments remain in the state of nature, such as visiting aliens, minors, and those with cognitive impairments. He posits that the state of nature is a relational concept, describing moral relations between specific individuals rather than a territory devoid of effective government. It defines moral rights and responsibilities between people who have not consented to the same legitimate government’s adjudication of disputes. Those who haven’t or can’t consent remain in this state. Thus, A may be in the state of nature with respect to B but not with C.
Categorizing Individuals in the State of Nature:
| Category | Reason for Remaining in State of Nature |
|---|---|
| Visiting Aliens | Lack of Consent |
| Minors | Inability to Give Consent Due to Age |
| Those with Impairments | Inability to Give Consent Due to “Defect” of Reason |
Simmons’s interpretation contrasts sharply with that of Strauss, who views Locke’s state of nature as a factual description of early society, revealing Locke’s departure from Christian teachings. Straussians argue that state of nature theories contradict the Biblical account in Genesis, indicating Locke’s alignment with Hobbes. They suggest that Locke’s Christian statements are a facade concealing anti-Christian views. Conversely, Simmons argues that the state of nature, as a moral account, is compatible with diverse social accounts. Knowing people are in a state of nature reveals their rights and responsibilities but not their economic or social status.
2.2 The Theological Dimension of Locke’s State of Nature
Dunn provides a complementary interpretation, arguing that Locke’s state of nature is less about historical anthropology and more about theological reflection on the human condition. Locke’s state of nature thinking, according to Dunn, expresses his theological position that man exists in a world created by God for God’s purposes, while governments are created by men to further those purposes.
Locke’s state of nature theory is closely linked to his natural law theory, which defines personal rights and the status of individuals as free and equal. The stronger the basis for accepting Locke’s characterization of people as free, equal, and independent, the more useful the state of nature becomes for representing people. Nonetheless, it’s crucial to remember that none of these interpretations claims that Locke’s state of nature is only a thought experiment, unlike how Kant and Rawls used the concept. Locke defended the existence of people in the state of nature and argued that some governments have been formed as he suggests.
Key Elements of Locke’s State of Nature:
- Absence of common judge with authority.
- Coexistence according to reason.
- Characterized by freedom and equality.
How much this matters is discussed under consent, addressing whether a government can be legitimate without the actual consent of its people. Hypothetical and actual contract theories tend to answer this question differently.
3. How Does Locke Justify Private Property, And What Are the Criticisms?
Locke’s treatment of property is considered a key contribution to political thought but has faced significant criticism. Debates persist regarding his objectives. Macpherson interprets Locke as advocating unrestricted capitalist accumulation. He argues Locke initially set three restrictions on property accumulation in the state of nature: one may only appropriate what one can use before it spoils, one must leave “enough and as good” for others (the sufficiency restriction), and one may only appropriate property through labor. Macpherson contends that each restriction is later transcended. The spoilage restriction becomes irrelevant with money, allowing value to be stored without decay. The sufficiency restriction is overcome as private property increases productivity, benefiting even those without land.
Macpherson argues that the “enough and as good” requirement is derived from a principle guaranteeing the opportunity to acquire necessities through labor. The third restriction, he claims, was not held by Locke, as Locke recognized that even in the state of nature, “the Turfs my Servant has cut” can become property, signifying alienated labor. Thus, Macpherson criticizes Locke’s “possessive individualism,” arguing its coherence relies on differential rationality between capitalists and wage-laborers and class division.
3.1 Challenges to Macpherson’s Interpretation
Macpherson’s understanding of Locke has been challenged from various angles. Ryan argues that because property includes life and liberty, even those without land could be members of political society. The dispute turns on whether Locke used “property” expansively in crucial passages. Tully challenges Macpherson’s interpretation, pointing out that the First Treatise includes a duty of charity toward those without subsistence, undermining the claim that the wealthy have no social duties.
Competing Interpretations of “Property” in Locke:
| Interpreter | View on “Property” | Implication for Social Membership |
|---|---|---|
| Alan Ryan | “Property” includes life and liberty | Those without land can still be members of political society. |
| James Tully | Emphasizes the duty of charity, challenging the notion that the wealthy have no social duties. | Undermines the claim that the wealthy have no social duties to others. |
Tully also proposes a reinterpretation of Locke’s theory. Previous accounts focused on persons owning their labor, which becomes their property when mixed with unowned items. Nozick critiqued this mixing metaphor with his tomato juice example: why should mixing what we own with what we don’t gain property instead of losing it? Tully suggests focusing on Locke’s “workmanship model,” where makers have property rights akin to God’s rights over humans as their maker. Humans, created in God’s image, share the ability to shape the environment rationally. Waldron critiques this, arguing it would grant human makers absolute rights like God’s. Sreenivasan defends Tully, distinguishing between creating and making, with only creating generating absolute rights.
3.2 The Sufficiency Condition and Its Implications
Another controversial aspect is Tully’s interpretation of the sufficiency condition. He argues that the sufficiency argument is crucial for Locke’s argument to be plausible. Locke assumes that the world is owned by all, so individual property is only justified if no one is made worse off by the appropriation. Where goods are not scarce, appropriation does no harm. Where scarcity exists, those denied access have a legitimate objection.
Impact of Scarcity on Property Rights:
| Condition | Effect on Property Rights |
|---|---|
| Non-Scarcity | Individual appropriation does no harm and is justified. |
| Scarcity | Those denied access have a legitimate objection, and previous rights acquired by labor no longer hold. Property can only be legitimated by the creation of political society. |
Tully argues that Locke realized that as soon as land became scarce, previous rights acquired by labor no longer held since “enough and as good” was no longer available. Once land became scarce, property could only be legitimated by creating political society. Waldron claims that Locke did not recognize a sufficiency condition at all. He notes that Locke makes sufficiency a sufficient rather than necessary condition. Waldron believes Locke makes a descriptive, not normative, statement about initial conditions and argues that the condition would lead to absurdity in scarcity, requiring universal consent and preventing any appropriation.
3.3 Synthesis and Controversies
Sreenivasan defends Tully’s position, arguing that Locke’s repeated use of “enough and as good” is significant. It is the only way Locke can be thought to have provided some solution to the fact that the consent of all is needed to justify appropriation in the state of nature. If others are not harmed, they have no grounds to object and can be thought to consent, whereas if they are harmed, it is implausible to think of them as consenting. Sreenivasan departs from Tully, interpreting “enough and as good” to mean “enough and as good opportunity for securing one’s preservation,” not “enough and as good of the same commodity (such as land).” This makes Locke’s account less radical since it does not claim that Locke thought the point of his theory was to show that all original property rights were invalid at the point where political communities were created.
Key Interpretations of “Enough and As Good”:
| Interpreter | Interpretation | Implications |
|---|---|---|
| James Tully | Enough and as good of the same commodity (such as land). | Once land becomes scarce, previous rights acquired by labor no longer hold. |
| Gopal Sreenivasan | Enough and as good opportunity for securing one’s preservation. | Makes Locke’s account less radical as it doesn’t invalidate all original property rights upon the creation of political communities. |
The disadvantage of this interpretation, as Sreenivasan admits, is that it saddles Locke with a flawed argument. Those who merely have the opportunity to labor for others at subsistence wages no longer have the liberty that individuals had before scarcity to benefit from the full surplus of value they create. Moreover, poor laborers no longer enjoy equality of access to the materials from which products can be made. Sreenivasan thinks that Locke’s theory is thus unable to solve the problem of how individuals can obtain individual property rights in what is initially owned by all people without consent. Simmons presents a different synthesis, siding with Waldron against Tully and Sreenivasan in rejecting the workmanship model. He argues that references to “making” in chapter five of the Two Treatises are not making in the right sense. Locke thinks we have property in our own persons even though we do not make or create ourselves. Simmons claims that while Locke did believe that God had rights as creator, human beings have a different limited right as trustees, not as makers. Simmons bases this in part on his reading of two distinct arguments he takes Locke to make: the first justifies property based on God’s will and basic human needs, the second based on “mixing” labor.
3.4 The Role of Labor and Consent in Property Rights
According to the former argument, at least some property rights can be justified by showing that a scheme allowing appropriation of property without consent has beneficial consequences for the preservation of mankind. This argument is overdetermined, according to Simmons, in that it can be interpreted either theologically or as a simple rule-consequentialist argument. With respect to the latter argument, Simmons takes labor not to be a substance that is literally “mixed” but rather as a purposive activity aimed at satisfying needs and conveniences of life. Like Sreenivasan, Simmons sees this as flowing from a prior right of people to secure their subsistence, but Simmons also adds a prior right to self-government.
Simmons’s Interpretation of Labor and Property:
| Argument | Description |
|---|---|
| Property Based on God’s Will | Property rights can be justified by showing that allowing appropriation without consent benefits mankind’s preservation. |
| Property Based on “Mixing” Labor | Labor is a purposive activity that satisfies needs and conveniences, flowing from a prior right to secure subsistence and self-government. |
Labor can generate claims to private property because private property makes individuals more independent and able to direct their own actions. Simmons thinks Locke’s argument is ultimately flawed because he underestimated the extent to which wage labor would make the poor dependent on the rich, undermining self-government. He also joins the chorus of those who find Locke’s appeal to consent to the introduction of money inadequate to justify the very unequal property holdings that now exist. Some authors suggest Locke may have had an additional concern in mind in writing the chapter on property. Tully and Arneil point out Locke’s interest in the American colonies and that his theory of labor led to the conclusion that Native Americans only generated property rights over the animals they caught, not the land on which they hunted, which Locke viewed as vacant. Armitage argues Locke was involved in revising the Fundamental Constitutions of Carolina while drafting the chapter on property for the Second Treatise. Goldie cautions that English political events were Locke’s primary focus in writing the Second Treatise.
3.5 Property Rights After Civil Society
A final question concerns the status of property rights acquired in the state of nature after civil society has come into being. Locke allows taxation by majority consent rather than unanimity. Nozick interprets Locke as a libertarian, with the government having no right to take property for the common good without the owner’s consent. He believes the majority may only tax to protect property rights. At the other extreme, Tully believes that by the time government is formed, land is scarce, so the initial holdings of the state of nature are no longer valid and don’t constrain governmental action. Waldron’s view is intermediate, acknowledging that property rights constrain the government, but the legislature has the power to interpret natural law substantially.
4. What Role Does Consent Play in Locke’s Political Philosophy?
Consent plays a crucial role in Locke’s political philosophy. His analysis starts with individuals in a state of nature, free from common legitimate authority. Individual consent is the mechanism by which political societies are created and individuals join them. While natural law imposes general obligations and rights, special obligations arise only through voluntary undertaking. Locke states full membership in society requires express consent. The literature on Locke’s consent theory focuses on whether Locke successfully answers the objection that few people have consented to their governments, thus questioning the legitimacy of most governments.
Locke’s solution to this problem is the doctrine of tacit consent. Walking along a country’s highways implies tacit consent to the government and agreement to obey its laws. This explains why resident aliens must obey the laws of the state where they reside, though only while they live there. Inheriting property creates a stronger bond, permanently placing the property under the commonwealth’s jurisdiction. Children, by accepting their parents’ property, consent to the commonwealth’s jurisdiction over that property. There is debate over whether inheriting property should be regarded as tacit or express consent. One interpretation suggests that Locke considers accepting property as becoming a full member of society, implying express consent. Grant suggests Locke’s ideal would have been an explicit mechanism where adults would give express consent as a precondition of inheriting property.
4.1 Tacit Consent and Its Discontents
Another interpretation suggests that Locke recognized that people inheriting property did not make any explicit declaration about their political obligation. Regardless, many people in current or past societies have never given express consent, necessitating some version of tacit consent to explain governmental legitimacy. Simmons finds it hard to see how walking on a street or inheriting land can be a “deliberate, voluntary alienating of rights.” He argues that consenting by actions is different from claiming consent without awareness. Requiring a person to leave all property and emigrate to avoid giving tacit consent makes continued residence not a free choice.
Challenges to the Doctrine of Tacit Consent:
| Challenge | Description |
|---|---|
| Difficulty in Viewing Everyday Actions as Consent | It is challenging to see how actions like walking on a street or inheriting land can be considered a deliberate, voluntary alienation of rights. |
| Lack of Awareness | Claiming a person has consented without being aware they have done so is problematic. |
| Coercive Implication | Requiring a person to leave all property and emigrate to avoid tacit consent makes continued residence not a free choice. |
Simmons agrees with Locke that real consent is necessary for political obligation but disagrees about whether most people have given that consent. Simmons claims Locke’s arguments push toward “philosophical anarchism,” the position that most people lack a moral obligation to obey the government, a claim Locke wouldn’t make. Pitkin takes a different approach, arguing that Locke’s logic diminishes the practical importance of consent. Tacit consent is a watered-down version, but Locke can do this because natural law, not consent, sets the basic content of governments. If consent were foundational, the legitimate powers of government would be derived from the original founders’ contract. However, Pitkin thinks that for Locke, natural law determines the form and powers of government. What matters is the present government’s quality, whether it meets natural law requirements, not previous acts of consent. Locke does not think walking the streets or inheriting property in a tyrannical regime implies consent. Thus, the government’s quality, not actual consent, determines legitimacy. Simmons objects, saying this fails to account for places where Locke says a person acquires political obligations only by consent.
4.2 Evolving Conceptions of Consent
Dunn takes a different approach, arguing it’s anachronistic to impose a modern conception of “consent” on Locke. While modern theories insist consent must be deliberate and voluntary, Locke’s concept was broader. For Locke, being “not unwilling” sufficed. Voluntary acquiescence, on Dunn’s interpretation, is all that’s needed. Dunn points to instances of consent Locke uses, such as “consenting” to the use of money, which make more sense on this broad interpretation. Simmons objects that this ignores instances where Locke discusses consent as a deliberate choice and would only make Locke consistent at the price of making him unconvincing.
Contrasting Conceptions of Consent:
| Conception | Description |
|---|---|
| Modern Theories | Insist that consent is truly consent only if it is deliberate and voluntary. |
| Locke’s Conception | Broader, requiring only that people be “not unwilling.” Voluntary acquiescence is sufficient. |
Recent scholarship continues to probe these issues. Davis closely examines Locke’s terminology and argues that we must distinguish between political society and legitimate government. Only those who have expressly consented are members of political society, while the government exercises legitimate authority over people who have not consented. He argues there is no sovereign, and the government is supreme only in some respects. He also argues one could give actual consent in Locke’s day by declaring an intent to cast a vote, rather than voting for a particular candidate, as an affirmative consent to be a member of a political society. Van der Vossen claims that the initial consent of property owners is not the mechanism by which governments come to rule over a territory. Instead, Locke thinks people simply begin exercising political authority and people tacitly consent. This tacit consent justifies a rudimentary state ruling over consenters. Treaties between these governments would then fix territorial borders. Hoff argues that specific acts of tacit consent (like deciding not to emigrate) are unnecessary for political obligation. Instead, consent is implied if the government functions in ways that show it is answerable to the people.
4.3 The Extent of Obligation and the Ends of Government
A related question concerns the extent of our obligation once consent has been given. The Straussian school emphasizes the primacy of preservation. Since natural law duties apply only when preservation is not threatened, our obligations cease when our preservation is directly threatened. Grant points out that Locke believes a soldier who deserts from a dangerous mission is justly sentenced to death. Grant takes Locke to be claiming not only that desertion laws are legitimate but that they also imply a moral obligation for the soldier to give his life for the common good. According to Grant, Locke thinks our acts of consent can extend to cases where living up to our commitments risks our lives. The decision to enter political society is permanent because the society will have to be defended, and if people can revoke their consent to help protect it when attacked, the act of consent made when entering political society would be pointless. People make a calculated decision when they enter society, and the risk of dying in combat is part of that calculation. Grant also thinks Locke recognizes a duty based on reciprocity since others risk their lives as well.
Different Interpretations of the Ends of Government:
| Interpretation | Description |
|---|---|
| Constitutionalist (Seliger) | Locke viewed as a constitutionalist; constitution created by the people as part of the creation of the commonwealth. |
| Majority Rule (Kendall) | Locke viewed as giving almost unlimited power to majorities; people create a legislature that rules by majority vote. |
| Flexible View (Tuckness) | Locke gave people considerable flexibility in constitutional drafting. |
| Libertarian (Nozick) | Governments exist only to protect people from infringements on their rights. |
| Positive Goals (Tuckness) | Government limited to fulfilling the purposes of natural law, including positive goals as well as negative rights; power to promote the common good extends to actions indirectly useful to preserving society. |
Most approaches focus on Locke’s consent doctrine as a solution to political obligation. Another approach asks what role consent plays in determining the legitimate ends governments can pursue. One part of this debate is between Seliger and Kendall, the former viewing Locke as a constitutionalist and the latter as giving almost unlimited power to majorities. On the former interpretation, a constitution is created by the consent of the people as part of the creation of the commonwealth. On the latter interpretation, the people create a legislature which rules by majority vote. Tuckness argues that Locke was flexible here and gave people considerable flexibility in constitutional drafting. Another part of the debate focuses on ends rather than institutions. Locke states that the Government’s power is limited to the public good, only for preservation and not for killing, enslaving, or plundering citizens. Libertarians like Nozick read this as stating that governments exist only to protect people from infringements on their rights. Tuckness draws attention to the positive formulation of natural law that mankind is to be preserved “as much as possible.” On this second reading, government is limited to fulfilling the purposes of natural law, which includes positive goals as well as negative rights. The power to promote the common good extends to actions designed to increase population, improve the military, strengthen the economy and infrastructure, and so on, provided these steps are indirectly useful to the goal of preserving the society. This would explain why Locke, in the Letter, describes government promotion of “arms, riches, and multitude of citizens” as the proper remedy for the danger of foreign attack.
5. How Does Locke’s Theory of Punishment Relate to His Political Philosophy?
John Locke defined political power as the right to make laws with penalties of death and all lesser penalties. Locke’s theory of punishment is central to his view of politics and part of what he considered innovative about his political philosophy. He also referred to his account of punishment as a “very strange doctrine,” presumably because it ran against the assumption that only political sovereigns could punish. Locke believed that punishment requires a law, and since the state of nature has the law of nature to govern it, it is permissible to describe one individual as “punishing” another in that state.
Key Principles of Locke’s Theory of Punishment:
- Punishment requires a law.
- Individuals can punish each other in the state of nature.
- The fundamental law of nature must be enforced.
Locke’s rationale is that since the fundamental law of nature is that mankind be preserved, and since that law would “be in vain” with no human power to enforce it, it must, therefore, be legitimate for individuals to punish each other even before government exists. In arguing this, Locke was disagreeing with Samuel Pufendorf, who had argued strongly that the concept of punishment made no sense apart from an established positive legal structure. Locke realized that the crucial objection to allowing people to act as judges with power to punish in the state of nature was that such people would end up being judges in their own cases. Locke readily admitted that this was a serious inconvenience and a primary reason for leaving the state of nature. Locke insisted on this point because it helped explain the transition into civil society. Locke thought that in the state of nature men had a liberty to engage in “innocent delights” (actions that are not a violation of any applicable laws), to seek their own preservation within the limits of natural law, and to punish violations of natural law. The power to seek one’s preservation is limited in civil society by the law, and the power to punish is transferred to the government. The power to punish in the state of nature is thus the foundation for the right of governments to use coercive force.
5.1 Rationales and Complexities of Punishment
The situation becomes more complex, however, if we look at the principles which are to guide punishment. Rationales for punishment are often divided into those that are forward-looking and backward-looking. Forward-looking rationales include deterring crime, protecting society from dangerous persons, and rehabilitation of criminals. Backward-looking rationales normally focus on retribution, inflicting on the criminal harm comparable to the crime. Locke may seem to conflate these two rationales in passages like the following:
Locke on the Purpose of Punishment:
And thus in the state of nature, one Man comes by a power over another, but yet no absolute or arbitrary Power, to use a criminal when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own will, but only to retribute to him, so far as calm reason and conscience dictates, what is proportionate to his transgression, which is so much as may serve for reparation and restraint. For these two are the only reasons, why one man may lawfully do harm to another, which is that [which] we call punishment. (Two Treatises 2.8)
Locke talks both of retribution and of punishing only for reparation and restraint. Simmons argues that this is evidence that Locke is combining both rationales for punishment in his theory. A survey of other seventeenth-century natural rights justifications for punishment, however, indicates that it was common to use words like “retribute” in theories that reject what we would today call retributive punishment. In the passage quoted above, Locke is saying that the proper amount of punishment is the amount that will provide restitution to injured parties, protect the public, and deter future crime. Locke’s attitude toward punishment in his other writings on toleration, education, and religion consistently follows this path toward justifying punishment on grounds other than retribution. Tuckness claims that Locke’s emphasis on restitution is interesting because restitution is backward-looking in a sense (it seeks to restore an earlier state of affairs) but also forward-looking in that it provides tangible benefits to those who receive the restitution. There is a link here between Locke’s understanding of natural punishment and his understanding of legitimate state punishment. Even in the state of nature, a primary justification for punishment is that it helps further the positive goal of preserving human life and human property. The emphasis on deterrence, public safety, and restitution in punishments administered by the government mirrors this emphasis.
5.2 Punishment on the International Stage
A second puzzle regarding punishment is the permissibility of punishing internationally. Locke describes international relations as a state of nature, and so in principle, states should have the same power to punish breaches of the natural law in the international community that individuals have in the state of nature. This would legitimize, for example, punishment of individuals for war crimes or crimes against humanity even in cases where neither the laws of the particular state nor international law authorize punishment. Thus in World War II, even if “crimes of aggression” was not at the time recognized as a crime for which individual punishment was justified, if the actions violated the natural law principle that one should not deprive another of life, liberty, or property, the guilty parties could still be liable to criminal punishment. The most common interpretation has thus been that the power to punish internationally is symmetrical with the power to punish in the state of nature.
Contrasting Views on International Punishment:
| Viewpoint | Description |
|---|---|
| Symmetrical Power to Punish Internationally | States should have the same power to punish breaches of the natural law in the international community that individuals have in the state of nature. |
| Asymmetrical Power to Punish Internationally | States are limited in the goals that they can pursue; the power to punish is to be used for the protection of the rights of its own citizens, not for the rights of all people everywhere. |
Tuckness, however, has argued that there is an asymmetry between the two cases because Locke also talks about states being limited in the goals that they can pursue. Locke often says that the power of the government is to be used for the protection of the rights of its own citizens, not for the rights of all people everywhere. Locke argues that in the state of nature a person is to use the power to punish to preserve his society, which is mankind as a whole. After states are formed,
