AS/POLS 2900.6A
  Perspectives on Politics
2010-11

January 25  – Locke: The Short Uncritical Version

As we know, for Hobbes binding obligation takes place only under the existence of a sovereign power. Without political society with a sovereign power, there is neither law nor society. In Locke, nothing is this clear. It seems there is a society in Locke’s state of nature. Here Locke is hearkening back to the writings of the natural law theorist Richard Hooker: society exists by nature. Locke comes close to a few later liberals in seeing society as capable of existing without government. Social relations and social order can exist without direction from a political centre and without a state monopoly on violence.

It seems that in the state of nature, men are subject to laws. The state of nature is itself a logical deduction from what Locke takes to be the Creator’s purpose in establishing the existence of the human species. (But take note of the later section 86, where it appears that our knowledge of God’s purpose is deduced from our understanding of his creatures’ needs.) The main characteristics of the state of nature are two. First, by nature, each individual has complete freedom from the will of others. Thus there are no natural masters and slaves, superiors and inferiors, lords and dependents. The state of nature is therefore a condition of “perfect equality”. That is, in it there is a perfect equality of jurisdictions. Each individual has total jurisdiction over himself. This notion is fundamental to all liberalism. Our equality is fundamental and not actual. Our equality follows strictly from the ability of each to fend for themselves. Since I am responsible for myself and for no-one but myself (no matter what kind of mess I make of my self-responsibility), there can be no reason except the reason of self-preservation why I might ever accept the will of someone else as a command for me. (You might say, then, that liberalism actually has something like a concept of positive liberty: you have the freedom to make it or to fail. No one will help you; you are on your own – take it or leave it).

So far, Locke’s state of nature is much like that of Hobbes. Everybody in it is free of any external authority and thereby formally and fundamentally equal. But now Locke will diverge from Hobbes in saying that individual liberty in nature is limited by the law of nature. The law of nature requires three basic things: first, that no one ought to harm another in their life, liberty, health or possessions (this is derived from the Creator’s purpose); second, no one may harm him/herself (also derived from the Creator’s purpose); and third, that if one’s self-preservation is not in danger, one should try to preserve the rest of mankind. According to Locke these laws of nature are not only obligatory, but they are also enforced. How is that done? After all, according to Locke, the law of nature will only teach those that consult it. That is, it doesn’t work automatically in everyone. Locke seems to thus admit that there would be at least a few “natural” criminals. So the question is, who will enforce the law of nature? And the answer is that each individual will enforce it. Each man will be judge in his own case, but as judge is empowered by the law of nature to go only so far as punishing transgressions against it. Anything more than that would violate the first law of nature. Therefore in the state of nature, each having just as much power as is needed to restrain, or punish or get reparations is rightful.

In the picture he draws, the law of nature in the state of nature seems on the whole to be effective. Men obey because they are prudent enough and, because there will always be a few who act “as wolves”, a kind of vigilante justice is all that is needed. Each will enforce the law of nature and has the right to do so within the law of nature. This feature is significantly different from Hobbes, for whom the insecurity and competitiveness of the state of nature gave each and everyone the right to do anything to anyone at any time. It seems, therefore, that Locke’s state of nature and Hobbes’s state of Warre are very far from each other. And Locke’s version is conceivable, if you grant that most people are capable of seeing the utility of natural law and imposing it consistently on themselves, despite short-term disadvantages. However, this is not the only picture Locke draws of what goes on in the state of nature. We will take up his ambiguity about it a little later.

So far, Locke has presented us with a picture of society working without government. Why leave that condition? According to Locke, people quit the state of nature and establish government because interpretations of natural law will vary, and because this is an inconvenience. Thus individuals will be willing to hand over the right to enforce the law of nature. Those who do so will be (contra what Hobbes requires) a shifting majority. So Locke’s social contract will establish sovereignty in the majority of the contractors. For him this is the minimal agreement required because a minority cannot rule. But it is also the maximum transfer of power required, because more is not needed.

The power passing to the government is therefore limited, and it is limited because the powers of individuals in the state of nature are already limited. It is only the power to interpret and enforce the law of nature that is transferred. The sovereign majority, however, cannot govern directly. Another step is needed, and “government” properly so-called (as distinguished from the sovereign majority) is set up by this second step. The majority of the member of civil society set up government as a trust. This means that government can be removed by a majority. The majority has a right to set up governments and to remove governments if and when governments betray that trust, i.e. when they interfere with the natural rights of the people.

We are still looking at the orthodox version of Locke, but we need to pause for a moment and examine this business about consent and its relation to community. Remember that for Locke society only appears to exist in the state of nature; it doesn’t exist fully until sovereignty is established. The older view of society that Locke is at once drawing on and significantly changing sees society as something in itself, an independent entity capable of governing itself for its own good, for the common good.  Locke seems to be speaking of the same common good, which is why he is constantly referring to the writings of “the judicious Hooker”. Yet for Hooker, society was prior to the individual. And this is not the case for Locke. This makes a difference when you look at Locke’s case for consent being a condition of political obligation. A doctrine of consent was not invented by liberals. There is a long tradition of making obedience conditional upon consent stretching well back into the middle ages, or actually there are two traditions: one for and one against a right of resistance being a consequence of the requirement of consent.  Now, in the medieval tradition, it is the people as a corporate body that has a right to resist tyrannical authority, under their “natural leaders”. In Hooker, the consent given or withheld is a communal consent and aims at establishing good government for the people. In Locke, a collective right of consent on behalf of the whole people is transformed into an individual right. This is because the liberal approach to society denies the reality of the existence of a people and sees society as a mechanism for acquiring and holding individual goods. In this view, the common good means only the mechanical sum of individual goods.  Society is only the sum total of separate individuals, a random collection of individuals each attempting to maximize their private and exclusive utilities. Social control is only considered just to the extent it is needed to protect the individual who accepts sovereignty and government only for the sake of securing life, liberty and property. Locke does not clearly begin with the individual (not when compared with Hobbes). Take for example the first few laws of nature: there is an obligation to preserve society – but, only insofar as it is compatible with one’s own preservation. The seeming community disappears when you look at the basic formula of perfect freedom to preserve individual life, liberty and property.

We can move on to Locke’s theory of government. Government, for Locke, is different from Hobbes’s Sovereign. In Locke, sovereignty must be retained in the majority of the contractors. But “government” is the executive and legislative power that the sovereign majority delegates. Government is therefore a “trust” that can be betrayed by one side and revoked by the other. Government does not create society, but is instead itself created and re-creatable. Both sovereign and government are in some way limited by natural law.  Locke tries hard to retain some distinction between natural and positive law.  It’s possible, in Locke, to have illegitimate government because government may not arbitrarily interfere with life, liberty and property. It may not do so because individuals in the state of nature never had such a right; they only renounce the right to interpret and enforce the law of nature. Positive law must be in accord with the law of nature.

Thus Locke establishes his famous “right of revolution”. Yet revolt – vs. Hobbes – does not render the social contract void. In a condition of revolt, it is not society that is dissolved. In revolt, society entrusts the same powers to a new government. This right of revolt is unlike the medieval right of revolt in that it is not restricted to certain groups (the feudal aristocracy being the “natural leaders” of medieval society). According to Locke, it remains in society as such – somewhere. That is, it is not made clear by Locke whether the right of revolt is in individuals, minorities or the majority.

One should take not that this is not (or at least not yet) an idea of democratic self-rule on the part of the people like Rousseau’s. A particular government is only removable when it betrays its trust. When it is the case that a trust has been betrayed is not something easy simple (or safe) to decide. (Locke will discuss this issue in Ch. 19) Note also that the majority is not continuously supreme, only continuously sovereign. That is the majority retains only a very risky potential power that is to be invoked in times of sever oppression. The government Locke is talking about is not responsible in elections (or through referenda, recall of deputies, or other formally democratic mechanisms…) Government need not, therefore, express the popular will. Popular and/or individual consent only limits government to respecting the law of nature (and remember what the first law of nature is?)

In what way is government therefore limited? First, government must not act arbitrarily (that is, there must be known laws and judges; this is not much different from Hobbes). Second, government cannot appropriate individual property without consent (but whose consent? It is not the consent of the individual that Locke is referring to, but the consent of the majority. So if the government needs your house for a new airport runway, it can still get it…) Third, government cannot transfer its delegated powers. Locke’s reasoning for these limits is as follows: first, if government can act arbitrarily, there will be no security in lives and liberty, which was the whole purpose of setting up government in the first place. In the state of nature no person has the right to act arbitrarily, but only to punish transgressions of the law of nature.  Second, arbitrary power would mean that no one’s property would be secure. But civil society is set up to protect property, which is itself natural. Third, if governments were able to renounce or transfer their powers, then civil society would be deprived of its power.

So civil society is established by contract and government is established by an act of delegation. This delegation can be either of the legislative and executive power in the same body, or it can be a double delegation where the legislature in turn delegates to an executive. The revolution of 1688 was the replacement of an old executive by a new executive. Just as the majority of contractors can take back legislative powers, the majority of the legislature can do this with the executive. Locke’s is therefore a doctrine of legislative supremacy (not legislative sovereignty) versus other possibilities such as the separation of powers in the later United States constitution. The executive (in Locke’s case the monarch) is an agent, like a lawyer, and can be changed at any time. The people (whether as individuals considered severally or as a corporate body)can take back the legislative power only under extreme circumstances.

In sum: The state of nature is of such a character that it demands and allows for a contract establishing civil society and government. In the contract, individuals agree to obey a majority. The majority entrusts its powers to a legislative body. The legislature may institute an executive which, if it does, is removable at will, at any time. The legislative is supreme (not sovereign); but the majority is sovereign only when it is in rebellion. The supremacy of the legislature is thus, at first glance, similar in some ways to Hobbes’s sovereign: for example, the legislature is no longer limited by common law (which was the doctrine of the respected English jurist Edward Coke); nor is the legislature limited by a written constitution and by judicial review (as in the U.S. constitution).

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